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Cite as:  UKAIT 00062,  UKAIT 62
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HGMO (Relocation to Khartoum) Sudan CG  UKAIT 00062
Date of hearing: 20 and 21 June 2006
Date Determination notified: 3 August 2006
|Secretary of State for the Home Department||RESPONDENT|
(1) This case gives country guidance in relation to the removal to Khartoum of certain Sudanese nationals. It replaces as country guidance the cases of AE (Relocation-Darfur-Khartoum an option) Sudan CG  UKAIT 00101 and MH (Darfurians: relocation to Khartoum?) Sudan CG  UKAIT 00033.
(2) Neither involuntary returnees nor failed asylum seekers nor persons of military age (including draft evaders and deserters) are as such at real risk on return to Khartoum.
(3) 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. Neither at the airport or subsequently will such a person face a real risk of being targeted for persecutory harm or ill treatment.
(4) A person of Darfuri origin or non-Arab Darfuri origin can in general be reasonably expected to relocate to Khartoum. If that person were in practice compelled to live in an IDP camp or a squatter area in Khartoum, this would not expose the person concerned to a real risk of serious harm or ill treatment contrary to Article 3 or conditions which would be unduly harsh, according to the legal tests in Januzi  UKHL 5, since there is no marked difference between conditions in such camps and squatter areas and the living conditions for most persons living in Sudan.
(5) In any event, it cannot automatically be assumed that a returnee who is of Darfuri origin or non-Arab Darfuri origin will be reasonably likely to have to live in such a camp or area – it will be for an appellant to prove this in his or her case.
(6) An appellant will be able to succeed on the basis of medical needs only in extreme and exceptional circumstances.
(7) There will, nevertheless, be limited categories of Darfuri returnees who will be at real risk on return to Khartoum. Each case will need to be considered on its own individual merits, taking account of all relevant circumstances, considered individually and cumulatively. The Tribunal considers that the following can be said to constitute particular risk categories (see further paragraph 309 of the determination):
a) persons of non-Arab Darfuri origin from one of the villages or areas of Darfur which are "hotspots" or "rebel strongholds" from which rebel leaders are known to originate;
b) persons (including certain students) whose conduct marks them out as oppositionists or anti-government activists;
c) tribal leaders;
d) persons who whilst in the United Kingdom have engaged in activities which the Sudanese government is likely to know about and regard as significantly harmful to its interests;
e) female returnees, if they are reasonably likely to be associated with a Sudanese male of adverse interest to the authorities or if it is reasonably likely that they would have no alternative but to become a female-headed household in an IDP camp or squatter area.
The cases of Appellants H, G and M
"… [Appellant H]
35. [Appellant H] is a citizen of Sudan. He was born on 1 July 1972. He seeks asylum on the ground that he has a well-founded fear for reasons of race. He claims that he is a member of the Zaghawa tribe from the village of Oro in west Darfur. He says that in November 2003 his village was attacked by the Janjaweed militia. His father and brother were killed in this attack. He and his mother went to stay with his uncle in the village of Taweela. But in October 2004 this village too was attacked by the Janjaweed and his mother was killed. He then went to the village of Al Shyria where he met an agent who arranged for him to leave the country, which he did in October 2004. He reached the United Kingdom and claimed asylum on his arrival here on 22 November 2004.
36. The Secretary of State resisted [appellant H's] claim by letter dated 19 January 2005 on the ground that the responses he gave to questions when he was interviewed indicated to the asylum caseworker that his account of his place of origin was not genuine. The caseworker did not believe that [appellant H] was from Darfur. So she did not accept that he would be at risk of being killed or subjected to any other ill-treatment if he returned to Sudan. She held that he did not have a well-founded fear of persecution in Sudan on the grounds of his race.
37. [Appellant H's] case was reconsidered by an adjudicator on 16 March 2005. She accepted his account of his origins and background and of what had happened to him in Sudan. She concluded that he had established that he had suffered persecution because of his ethnicity and that he would be at risk if he were to return to his home area. But she said that if he were to be returned to Sudan he would arrive at Khartoum. In her opinion he could remain there, as this was an area of his country where he would not have a well-founded fear of persecution. In reaching this decision she followed the reasoning of the Immigration Appeal Tribunal in MM (Zaghawa – Risk on Return – internal Flight) (Sudan)  UKIAT 00069. She relied on the fact that he had no history of political involvement and was not a student. She said that, given the numbers of displaced people in Khartoum and their diverse ethnicity, there was no reason to think that he would be treated with suspicion and prejudice by the local security forces and there was no real likelihood of a risk of persecution or of treatment contrary to article 3 of the European Convention on Human Rights. She accepted that he had lost his family in Darfur and had had to flee the Janjaweed. But there was no evidence that he faced any health issues and, as he was aged 32, he was neither very young nor old. So, while it might well be difficult and even harsh for him to relocate in Sudan, it would not be unduly harsh for him to do so in the circumstances. His appeal to the Asylum and Immigration Tribunal was rejected by the immigration judge.
"… [Appellant G]
38. [Appellant G] too is a citizen of Sudan. He was born on 13 January 1973 and is a member of the black African Muslim Al Berget tribe. He seeks asylum on the ground that he has a well-founded fear on grounds of race and because of his family's links with the Sudanese Liberation Movement ("the SLM"). His home village of Tawila is in north Darfur. On 7 March 2004 it was attacked during the night by the Janjaweed militia. Three people in his village were killed and many were injured. Crops and property were destroyed or stolen, some of the dwellings were burned down and his own home was looted. His village was attacked again by the Janjaweed militia during the night of 22 November 2004. They began looting property and killing people at random, so he fled from the village with other members of his family. On 27 November he heard that security agents had arrested his father and brother from their home in Sawar near Al Fashir in north Darfur to which they have moved after the attack on 22 November 2004. He was told that the security agents believed that they and the appellant had links with and were supplying weapons to the SLM. His uncle warned him that the security agents were looking for him too. He went into hiding, and was taken to the city of Al Kofra from where he travelled to the United Kingdom. He arrived here on 9 December 2004 and claimed asylum the next day.
39. The Secretary of State refused [appellant G's] claim by letter dated 27 January 2005. But there was no challenge in the refusal letter to the account that he had given of his ethnicity and tribal membership. His case was reconsidered by an immigration judge on 13 April 2005. She found that he was a displaced black African who had fled internally within north Darfur. But she rejected his account of what had taken place with regard to his father and brother, and she did not accept his claimed fear of return on the basis of political or imputed belief associated with his family. This left his fear of return on the basis of the treatment by the State of members of a black sedentary tribal minority, assuming that he was someone who had no political profile.
40. Having reviewed the Secretary of State's decision in the light of AB (return of Southern Sudanese) Sudan CG  UKIAT 00260, the immigration judge concluded that, as a minority African tribe member, [appellant G] could be returned as an internally displaced person to live in a camp in or near Khartoum without any real risk of treatment of a severity that would breach article 3 of the European Convention on Human Rights. She accepted that Sudanese of non-Arab Darfurian background faced a heightened risk of scrutiny by security agents on their return to the country and that internally displaced persons often face forced relocation and return to their home areas. But she found that the treatment of black African Sudanese was the result of land reclamation and tribal warfare, not because there was a policy or desire to eradicate the black African tribal groups on the part of the Sudanese government. She said it would not be unduly harsh for him to move into a camp for internally displaced persons on his arrival at Khartoum airport as he would be one of thousands of such persons who are members of a black African tribe, and he was an adult male who was able to fend for himself and had no political profile. His appeal to the Asylum and Immigration Tribunal was rejected."
41. [Appellant M] is a citizen of Sudan also. He was born on 1 January 1970 and is a member of the Zaghawa tribe. He seeks asylum on the ground that he has a well-founded fear for reasons of race and because of his political opinion in that he is a member or at least a supporter of the Sudanese Liberation Army ("the SLA"). His home is in the village of Abogamra in Darfur. He claims that in March 2003 his village was attacked by armed Arab militia. He helped to defend the village, but eight people from his village were killed and many people were injured. In April 2003 he relocated to the city of Nyala where his sister lived. He remained there for about a year. He claimed that during his time there he became involved with a group of Zaghawans who were engaged in raising money and recruiting members for the SLA. In March 2004 he was told that three of his colleagues had been arrested and had informed on him. Fearing arrest, he fled first to Omdurman and then to Khartoum. He stayed in Khartoum for six months with a relative and continued with his SLA activities. On 10 September 2004 an SLA meeting which he was attended was raided. He escaped by jumping over a wall and went into hiding. On 29 September 2004 he left Sudan. He claimed asylum on his arrival in the United Kingdom on 1 October 2004.
42. The Secretary of State refused [appellant M's] claim by letter dated 1 December 2004. His case was reconsidered by an adjudicator who on 9 March 2005 dismissed the appeal. The adjudicator was invited by the Secretary of State to make adverse findings on [appellant M's] credibility, and he did so. He said that he did not find [appellant M's] evidence that he had been involved with the SLA or in political activities to be credible. He accepted that he had left Darfur in some way because of the conflict, but much of his evidence was in his judgment implausible, inconsistent and vague. He gave some examples of this, among which was the fact that his knowledge of the SLA's policies was particularly vague and limited. He declined to find that he was even involved in politics either in Darfur or in Khartoum or that the authorities ever targeted him or were ever interested in him because of his SLA activities. But he was prepared to find that if he were to return to Darfur he would, like many others of his tribe, be persecuted there because of his ethnicity.
43. Turning to the situation in Khartoum, the adjudicator said he was not satisfied that [appellant M] had had any problems there. He found that when [appellant M] was living in Khartoum he was able to stay with a relative there. He was on the face of it a fit and healthy young man. He acknowledged that it might be difficult for many people from Darfur to settle in Khartoum and that [appellant M] might find it necessary to go to a camp. But he was not satisfied that it would be unduly harsh for him to do so. He noted that Darfurians suspected of political activities did appear to be targeted by the authorities, but he was not satisfied that [appellant M] had a profile that would make him in any sense the target of the authorities. In his opinion there was a viable internal relocation option for him in Sudan. He added, with regard to his human rights appeal, that it had not been proved to the necessary standard that he would have to stay in the refugee camp were he to return to Khartoum, or that even if he were to have to stay in one that this would lead to treatment which would breach his rights under article 4 of the European Convention on Human Rights. His appeal to the Asylum and Immigration Tribunal was refused."
Paragraph 44 of the opinions describes what happened next:-
"44. On 10 June 2005 Elias J referred all these cases to the Court of Appeal pursuant to section 103C of the Nationality, Immigration and Asylum Act 2002. On 25 October 2005 the Court of Appeal (Lord Phillips of Worth Matravers CJ, Maurice Kay LJ and Sir Christopher Staughton) held that no error of law had been identified in the determinations and dismissed the appeal:  EWCA Civ 1219. In paragraph 42 of the court's judgment Maurice Kay LJ said, on the issue of asylum, that there was no general principle or presumption that persecution by or on behalf of the state is incompatible with acceptable internal relocation. The court held that on both asylum and human rights grounds the decisions were entirely compatible with the country guidance contained in AE (Relocation – Darfur – Khartoum an option) Sudan CG  UKAIT 00101."
Case of Appellant O
The expert evidence
'The Darfur IDPs represent a potential catalyst for the downfall of the regime, and while it cannot detain or relocate them all, every effort is made to stifle their attempts at organisation or self-help and to obstruct assistance to them.'
'Returned Darfuri asylum seekers – the genuine ones – would risk being subjected to a cascade of adverse treatment by the security police, triggered by their ethnic identity and linked automatically to suspicion of sympathy with the rebels. This is just as likely to happen in the capital Khartoum as in Darfur region: it is essentially part of the same "collective punishment" process, reflecting the same government mindset and aims.'
At paragraph 84 Mr Verney stated:
'In my opinion the ethnic identity of Darfuri asylum seekers is in itself a strong indicator of likely persecution if returned to Sudan via Khartoum. There are many categories of persons of Darfuri ethnicity likely to be subjected to persecution. Not only students and conventional political activists are at risk; the dangers are just as great for farmers, doctors and a spectrum of ordinary citizens caught up in the conflict and suspected of aiding the rebel movements in any way.'
Mr Mohamed Boraka Bourain
'The fact that an individual does not hold their original passport will be taken as indicating that they left illegally and claimed asylum unless they can somehow prove that this is not the case. Claiming asylum abroad is perceived as a betrayal of Sudan and as tantamount to treason in and of itself and the authorities are inclined to punish this behaviour.'
'It would be almost inevitable that a failed asylum seeker would end up either being summarily executed or being detained in a ghost house on return from the UK.'
'I understand that political groups such as the Justice and Equality Movement (JEM) and the Sudanese Liberation Army Movement and even simply community groups are monitored across Europe.
If someone is returned from the UK having participated in demonstrations against the Sudanese government there is a very real risk that they would be identified on return as having been politically active. This would be regarded as treason.'
'From time to time and increasingly since the Comprehensive Peace Agreement (CPA) was nearing finalisation, the GoS have demolished the shacks and shelters that IDPs have constructed in the camps or squatter areas. Usually, no notice is given to the IDPs, nor do they have access to any mechanism for prevention or redress.
According to the UN Office for Coordination of Humanitarian Affairs, (OCHFA), 'The government of Sudan asserts that demolition of IDP property and relocation of IDPs is part of a rezoning process which includes the allocations of land to IDPs. However, 77% of relocated IDPs have never received plots and vulnerable groups including female-headed households; IDPs without IDs; and IDPs recently arrived in Khartoum have been excluded' (emphasis added)'.
'I conclude that IDPs in and around Khartoum are faced with a serious risk of being forcibly relocated in a manner that is often incompatible with the human rights of those affected and includes violations of their economic and social rights and thus are exposed to living conditions which fall short of international human rights standards.'
The conclusion Ms Maguire draws is that IDP camps and squatter settlements in Khartoum state provide no security for IDPs and that:
'It is also apparent that people from Darfur may be particularly vulnerable to forced relocation without notice or redress and they are vulnerable to detention and mistreatment by nature of their ethnicity and region of origin.'
'more vulnerable to forced relocation or other violations of human rights and gives the GoS (and the international community) even less incentive to provide humanitarian assistance in the camps and squatter areas to bring them to a minimum level of subsistence to match that provided by the international community in Darfur.'
'Given the powerful nature of the NSIS, it is inconceivable that an application for travel documents (whether made by the returnee or the UK government) would not cause the Sudanese embassy in the UK to alert the NSIS that a person from Darfur (specifying which area of Darfur) has applied for travel documentation and the circumstances of the application.'
'immediately alerts the immigration officials that someone unusual has (a) been to the UK and (b) has been sent back'.'
Ms Maguire appears to see three problems flowing from this state of affairs. First it would make the person immediately liable to suspicion as a draft evader.
'If a person is found to have evaded his conscription he will be liable – at best - to detention and interrogation and a sentence of imprisonment. If he is found to have left Sudan in order to evade conscription, it is not unlikely that he will be 'detained, interrogated and tortured'.
'To date very few people have been returned from Europe, especially from the UK on the basis of having failed [in] their application for international protection. The issue, therefore, is how likely it is that the security forces in Khartoum will detain the returnee, either at the airport or subsequently and how that person may be expected to be treated, particularly once it is known that he is a returnee from the UK and from Darfur. The numerous reports above all substantiate this fear.
The power of the NISS is such that the presence of any returnee from the UK will be immediately detected on arrival and they will be vulnerable to detention and interrogation in circumstances that flagrantly breach all the relevant human rights norms and standards.'
'This is plainly so if the person concerned is from an area considered to be a rebel stronghold. Men of less than 40 years old are suspected of being allied with the rebel groups (sharing these characteristics with the rebel leadership) and so are more likely to be detained for questioning.'
The background evidence
'6.125 The UN ICI report also notes that "It is reported that amongst the African tribes, members of the Zaghawa, Fur and Masaalit tribes, which have a marked concentration of population is some areas, have been particularly targeted. This is generally attributed to the fact that the two main rebel groups in Darfur are ethnically African and are largely drawn from these three tribes. It is for this reason that some observers have concluded that a major objective of destruction and depopulation of targeted areas is to eliminate or pre-empt any possibility of support for the rebels…The UN SG`s March 2006 monthly report on the situation in Darfur states that:
"Civilians living close to rebel territory and who share the same ethnicity as the rebels are particularly vulnerable to human rights violations by the Sudanese Armed Forces…"'
"…Some Arabs groups are fighting with the rebels and some African tribes have joined the Government's militia forces…There is also a marked suggestion of affiliation based on a tribe's land ownership and access to Darfur`s scarce natural resources. Members of those tribes without their own Dar (homelands) appear to have mainly sided with the Government, whilst those tribes with a Dar have generally allied themselves with the rebels…6.123 The report of the …UN ICI on Darfur to the UN Secretary General listed a number of differing uses of the term `Janjaweed` in connection with the conflict in Darfur, which further detailed that the conflict was not solely one of ethnicity:
"The fact that the Janjaweed are described as Arab militias does not imply that all Arabs are fighting on the side of the Janjaweed. In fact, the Commission found that many Arabs in Darfur are opposed to the Janjaweed, and some Arabs are fighting with the rebels, such as certain Arab commanders and their men from the Misseriya and Rizeigat tribes. At the same time, many non-Arabs are supporting the Government and serving in its army. Thus, the term 'Janjaweed' referred to by victims in Darfur certainly does not mean 'Arabs' in general, but rather Arab militias raiding their villages and committing their violations".
"Only 39% of heads of households surveyed reported that they had a regular source of income. Of these households, 37% were headed by women, with a range between the camps (47% in WeB, 44% in Mayo, 41% in Soba and 27% in OeS). It is no surprise that female headed households (FHH) are most vulnerable in terms of access to income, as data reveals that the higher the ration of FHH in an area, the higher a percentage of household reporting little or no income.
Income was reported as being generated either through employment or entrepreneurship, with 22% reporting being employed, but only 5% reporting being entrepreneurs. There was a distinct range between the surveyed areas, with 33% in OeS reporting being employed, 9% in WeB, 26% in Soba Aradi and 27% in Mayo Farms.
Access to employment included working as daily labourers, security guards, building, being engaged as cleaners/houseworkers. Entrepreneurship included selling vegetables, selling water (mudagagat), making brooms, operating small shops (toboliya), illegal activities, making blocks, building, selling tea, washing clothes. Boys in particular were involved in shoe shining, and using donkeys to sell water. Girls earn money by selling cooked foods, water melon seed and fried ground nuts.
FGDs in all three areas (WeB, Oes and Soba Aradi) reported that the entire family were involved in providing income to the household, although it was mentioned in Soba Aradi that parents tried to keep their children out of the market so that they would attend school."
The 2001 Danish Fact-finding Report
"3.1 Entry to Sudan
Abdulbagi Albushra Abdulhay, Major General, Director of Passport and Immigration, General Administration, Khartoum, denied that Sudanese citizens who had stayed abroad for some time would be arrested or questioned by the authorities on their return home. He said that no Sudanese would be questioned about his circumstances while abroad, however long he had been away, and whether he had been in Western Europe, the USA or other countries, with the exception of Israel. If a person had been in Israel he would be questioned.
He also explained that Sudanese who worked abroad were obliged to pay tax on their foreign income either at a Sudanese Embassy or to the tax authorities in Sudan. Abdulhay said that no Sudanese had been arrested or even questioned on their return from abroad unless they had some unresolved business with the Sudanese tax authorities or were suspected of previous criminal activities in Sudan.
Abdulhay explained that the airport police at Khartoum airport had a register of all wanted persons. The airport police showed these lists when the delegation visited the airport. The lists contain information about approximately 1700 Sudanese citizens who are wanted by the authorities. The lists are drawn up manually and there is no wanted persons database. Abdulhay also said that any foreigner could enter Sudan freely. Even former militant members of the opposition who had fought against the Government could enter without having problems with the authorities. He added that there was an amnesty for such people in Sudan.
Anyone entering the country who appears on the list and is identified by the authorities will immediately be arrested and handed over to the Detective Police/Central Intelligence Department (CID) at the airport, which after further investigations may hand him over to the security service. A source at the airport police said that this happened three or four times a month. However, the head of the CID, Colonel Emad Kalafalla M. Khier, said that five or six people were handed over every day. This figure included those travelling on false passports.
Waltmans-Molier said that the Netherlands Embassy did not follow up any deportations of rejected asylum applicants from the Netherlands. There was no form of monitoring and the Embassy therefore did not know what subsequently happened to those who had been returned. The Embassy was not informed in advance by the Netherlands authorities about forthcoming deportations, nor was it told if these were happening with or without a Dutch police escort.
Waltmans-Molier was not aware of the existence of an alleged Sudanese decree called Decree No 4/B/307 from the head of the general security apparatus to senior border guards . However, she knew that it was the practice for Sudanese citizens who had been away from the country for a couple of years or more and who were now returning home to be questioned by the Sudanese police on their arrival. Often this would be because of a failure to pay tax. The Netherlands Embassy was not aware of any examples of people suffering any harm while being questioned.
Questioning was carried out by the immigration authorities or by the security service and was, according to Waltmans-Molier, quite normal. She mentioned a case in which a Sudanese woman had been returned from the Netherlands to Khartoum. The woman claimed to be the member of an opposition party but could not give any account of its ideology, and had been repeatedly questioned by the security service. The woman complained to the Netherlands Embassy but the matter was not felt to be serious and the Embassy had not heard that the woman had come to any harm. Waltmans-Molier did not have information about the number of Sudanese citizens sent back from the Netherlands in the last year.
A well-informed local source in Cairo said that Sudanese citizens in possession of a valid national passport could enter Sudan without any difficulty. However, if they only had a temporary travel document they would be questioned about their circumstances on arrival in Sudan. This applied only to those returning voluntarily to Sudan. The source had no information about conditions on entry for Sudanese citizens who were being forcibly repatriated to Sudan.
Johannes Lehne said that Germany had never had problems with the deportation of rejected asylum applicants to Khartoum, either on entry or following entry. In the previous year a total of 15 people had been sent back to Sudan from Germany. Only in some individual cases had the deportation been followed up".
10th ACCORD COUNTRY OF ORIGIN SEMINAR REPORT, Budapest, December 2005
"Sudanese citizens need [an] exit visa to leave the country, and these are denied to persons the government doesn't want to travel abroad, for example to attend critical meetings or conferences. While considering an application for an exit visa, the authorities keep the passport of the applicant. It's not a fact that political opponents don't get exit visa at all; it just might [take] a couple of months or even years, and through all those years the passport stays with the authorities".
In relation to political activities in exile, Dr Alizadeh states:
"Of course, the Sudanese government observes activities of Sudanese nationals in Europe. Each consulate or embassy has at least two security officers who deal with intelligence information. Each event that is related to Sudan is attended by people from the embassy who observe and report – not to the minister of foreign affairs, but directly to their headquarters in Khartoum. The security apparatus, consisting of both internal security and intelligence service, monitors the activities of Sudanese citizens abroad."
"Failed asylum seekers won't face severe problems upon return, as long as they are not recognized as a threat to the state. However, if they are seen as a threat – there is no guarantee. In the beginning of the 90s there were cases of people who just disappeared. A lot of persons who left the country after the coup returned from exile. Of course they feared that they would be arrested at the airport, but nothing happened. However, this does not mean that the situation will continue like this."
Dr Schodder adds:
"In the past persons who left the country after the coup and stayed away for more than one year, would be questioned upon return automatically. This is no routine policy anymore; also the practice of arrests straight at the airport is not common anymore at the moment. Returnees might get visits from security officers later and be questioned or warned not to start any "funky ["funny"] business" in Sudan. I have no information that these people are particularly being targeted. Instead, some people who have been abroad for many years, maybe for political reasons, have come back to Khartoum. They are subject to close surveillance and they know that they cannot engage in political activities. They also know that they can be arrested, questioned, and detained at any time. They feel a little bit more secure if they obtained a foreign passport before their return. But if they are still Sudanese citizens, they have no protection at all. There have been some positive developments, but the security is monitoring the situation very closely and it is quite unpredictable".
The situation as regards military service is said by Dr Schodder to be as follows:
"Forced recruitment, where young men were rounded up on the streets, occurred before the peace agreement. This practice has stopped. Sudan now plans to establish a draft registration system. However, young persons who finish their secondary education will not get a school certificate unless they do the military service. If they plan to continue their education at university, they usually do two months of basic service, then study at university and have to finish the other ten months of service before getting their university certificate. There is no possibility of conscientious objection. With the exception of some people with relevant connections, there is no way of getting around military service.
Women are being drafted as well, but usually there is less pressure on the drafting of women and then they are being used in the nursing profession, the reserve and similar fields. According to the military law, the punishment for draft evasion is three years imprisonment. Desertion carries the death penalty. Draft evaders, instead of being punished, are often coerced into certain contingents of active service. Depending on where they are sent to fight, this could constitute another death penalty."
Dr Alizadeh adds: "The law foresees the death penalty for desertion, but we don't know any case where a person was executed, also due to the Sudanese culture."
UNHCR Position paper February 2006
"Forced returns to Sudan entail risk for certain categories of Sudanese, regardless of their place of origin, including Darfurians. These categories include young men of fighting age who are regularly singled out for detention and interrogation. These arrests are often pursuant to an administrative decree dated 28 February 1993, which authorizes border authorities to arrest returning Sudanese who left after the June 1989 coup and have stayed away for more than a year. Such individuals can be subject to "investigations" and "necessary security measures". Currently, the decree is applied selectively, depending on the profile of the individual returning. Young men of fighting age are particularly susceptible to be targeted".
Paragraphs 6-8 deal with the situation in Khartoum:
"6. In Khartoum there are approximately two million IDPs in four IDP camps and in some 16 squatter areas in and around the capital. The majority of the IDPs are from South Sudan, but there is a sizeable IDP population from Darfur as well, many of whom arrived in Khartoum during the 1980s as a result of drought. Survey estimates indicate that approximately 10-15% of the two million IDPs in Khartoum are from Darfur. The IDP population in and around Khartoum is socially and economically marginalised and lives in very poor living conditions, despite the activities of the UN and NGOs. Harassment and arbitrary violence on the part of the authorities is a regular occurrence. Internally displaced persons from Darfur in Khartoum also often face protection risks, including forced relocation and forced return [a footnote here gives the example of a March 2004 eviction of a camp composed of non-Arab Darfuri IDPs to the outskirts of Khartoum].
7. Exacerbating the problem, the Government has accelerated, since 2003, a "replanning process" for the IDP camps and squatter areas in and around Khartoum. This has led to demolition of IDP homes, schools and medical centres. It is assessed by UNHCR that approximately 250,000 IDP households have been made homeless as a result of the ongoing home demolitions. Thousands of families have been left with no place to live, because plots allocated are too few and no alternative shelters have been provided. There is no effective government policy addressing the needs of those excluded from accessing new plots. Especially hard-hit are undocumented IDPs, female-headed households and those who arrived in Khartoum after 1996. The latter include most of the IDPs from Darfur who were compelled to move to the capital, as a result of the Darfur crisis.
8. The fact that Internally Displaced Persons are receiving international assistance in Darfur and in Khartoum should not give rise to the conclusion that it is safe or reasonable for the claimants to return to parts of Sudan. Internally Displaced Persons in Darfur continue to face serious threats to their physical safety and personal security. In UNHCR's assessment, the threats are so widespread that it cannot be said that there is an internal flight alternative anywhere in Sudan for asylum-seekers from Darfur, including for those who resided in Khartoum before the Darfur crisis. Sudanese of 'non-Arab' Darfuri background returning to Sudan face a heightened risk of scrutiny by the security apparatus. Furthermore, where internal displacement is a result of 'ethnic cleansing' policies, denying refugee status on the basis of the internal flight or relocation concept could be interpreted as condoning the resulting situation on the ground and therefore raises additional concerns."
- "States provide international protection to Sudanese asylum-seekers from Darfur of "non-Arab" ethnic background, through according them recognition as refugees under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol or under the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, as appropriate [the footnote to this paragraph states that "While UNHCR`s recommendation that a presumption of eligibility to refugee status under the above-mentioned instruments applies to non-Arab Darfurians, asylum claims submitted by Darfurians of Arab origin shall be considered on their individual merits"];
- Where a State feels unable to grant refugee status under the law, but the individual is not excluded from international protection, at least a complementary form of protection should be granted; no non-Arab Sudanese originating from Darfur should be forcibly returned until such time as there is a significant improvement in the security situation in Darfur;
- Due attention is paid to the particular needs of especially vulnerable asylum-seekers from Darfur, such as female heads of households, medical cases or victims of past persecution;
- Due attention should, nevertheless be paid to possible grounds for exclusion, in according with Article 1(F) of the 1951 Convention and/or Article 1.5 of the 1969 OAU Convention, in certain individual cases".
American University of Cairo June 2006 Report
"'In Cairo, UNHCR`s current policy is to give `yellow cards` (indicating the holder is seeking asylum) to all Darfurians arriving in Egypt to protect them from refoulement. It has recently issued yellow cards to the many that they had previously rejected for asylum when they had arrived during the 1990s and early 2000s. Our experience is that UNHCR tends to be more restrictive than many governments, yet it clearly considers Khartoum unsafe for persons of a Darfurian identity".
Tribunal country guidance post-Januzi
"33. It cannot be expected that the above is a comprehensive review of the substantial amount of background material relating to Sudan and its present difficulties. The bundle prepared by the appellant's solicitors for the purposes of this appeal ran into some 445 pages and was augmented by additional material in the course of the hearing. The latest background material confirms the trends that were identified in early 2005. It demonstrates that there have been at least two additional closures of IDP camps in May and August 2005. Further, closure has taken place in violation of promises made by the Sudanese government. The breaking of these commitments was prefigured in the information set out as long ago as August 2004 and the report Broken promises? Nor can it be said that the breaches are the action of maverick politicians acting outside the scope of their authority because there is evidence that the decisions have been made at the highest level, namely, by the Governor of the State of Khartoum. We place no weight on the promises made by the Sudanese authorities. Nevertheless, Sudan is the recipient of aid and the donor countries have formed a Consultative Committee which attempts to exercise some control on what are undoubtedly violations of promises made in relation to proper respect for the rights of IDPs. It is clear that the UN are well aware of the breaches – as is amply demonstrated in the interview with the head of the UN's Internal Displacement Division on 30 September 2005 and the report of the UN Secretary General of 12 September 2005. Although the former indicates that the August closure of the camp at Omdurman was carried out in violation of settled procedures, the interview indicates the intention of the international community as represented by the Consultative Committee to influence the Sudanese government in effecting the orderly relocation of IDPs. We are satisfied that the United Nations and the wider international community are aware of the conditions of IDPs and that access to the camps is available to observers. Importantly, with that degree of knowledge about events on the ground, neither the United Nations nor the UNHCR have declared that those in the camps are at risk of persecution or that those returned to Sudan face a similar risk. Whilst the humanitarian concerns persist as to the manner in which the Sudanese government is handing its IDP population, the evidence does not suggest that all IDPs (or all those from Darfur) are at risk or that those returned to the country from abroad face a specific and heightened risk of persecution or ill-treatment. Nor, in our judgment, is it unreasonable in the sense that it is unduly harsh to expect those from the Darfur region to relocate to Khartoum. In this context, we take account of the appellant's personal strengths and resilience. He is a young male, apparently fit, who has shown himself to be resourceful.
34. Since hearing this appeal the House of Lords has issued its opinions in Januzi  UKHL 5. We have not had the benefit of submissions from the parties as to the possible implications of this judgment in cases such as this. It is clear that the House of Lords envisages a need for an up-dating country guidance decision dealing with internal relocation in Sudan and we understand that steps are being taken to ensure that this happens as soon as practicable. We have, however, considered whether what is said in Januzi requires us to reappraise anything we have said in this determination. We have concluded that it does not. Insofar as that judgment sets out the law dealing with internal relocation, we consider that our approach is consistent with that approach. Insofar as their judgment deals with the factual situation in Sudan and expresses concern about the current situation in Khartoum in the light of the most recent country materials, we consider that our decision takes account of all the background evidence, past and present, having a material bearing on the issue of relocation in Khartoum and can thus properly represent the position of the Tribunal on this issue for the immediate future and (in the absence of a change of circumstances in Sudan now) until such time as there is a new country guidance case dealing with the cases remitted by their Lordships' House.
For these reasons we are not satisfied that the two divisions of the Tribunal in MM and AE came to the wrong conclusion as a result of their not being shown background material that properly reflected conditions in Sudan in the early part of 2005".
The Legal Framework
Country Guidance cases
"(3) A practice direction may, in particular, require the Tribunal to treat a specified decision of the Tribunal as authoritative in respect of a particular matter."
The President's Practice Direction 18.2, made on 4 April 2005, provides as follows:-
"18.2 A reported determination of the Tribunal or of the IAT bearing the letters "CG" shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal or the IAT that determined the appeal. As a result, unless it has been superseded or replaced by any later "CG" determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:
(a) relates to the country guidance issue in question; and
(b) depends upon the same or similar evidence."
"20. … It is, however, important, given the immense significance of the decisions they make, that decision-makers should have some guidance on the approach to reasonableness and undue harshness in this context. Valuable guidance is found in the UNHCR Guidelines on International Protection of 23 July 2003. In paragraph 7 II(a) the reasonableness analysis is approached by asking "Can the claimant, in the context of the country concerned, lead a relatively normal life without facing undue hardship?" and the comment is made: "If not, it would not be reasonable to expect the person to move there". In development of this analysis the guidelines address respect for human rights in paragraph 28:
"Respect for human rights
Where respect for basic human rights standards, including in particular non-derogable rights, is clearly problematic, the proposed area cannot be considered a reasonable alternative. This does not mean that the deprivation of any civil, political or socio-economic human right in the proposed area will disqualify it from being an internal flight or relocation alternative. Rather, it requires, from a practical perspective, an assessment of whether the rights that will not be respected or protected are fundamental to the individual, such that the deprivation of those rights would be sufficiently harmful to render the area an unreasonable alternative."
They [UNHCR] then address economic survival in paragraphs 29-30:
The socio-economic conditions in the proposed area will be relevant in this part of the analysis. If the situation is such that the claimant will be unable to earn a living or to access accommodation, or where medical care cannot be provided or is clearly inadequate, the area may not be a reasonable alternative. It would be unreasonable, including from a human rights perspective, to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence. At the other end of the spectrum, a simple lowering of simple standards or worsening of economic status may not be sufficient to reject a proposed area as unreasonable. Conditions in the area must be such that a relatively normal life can be led in the context of the country concerned. If, for instance, an individual would be without family links and unable to benefit from an informal social safety net, relocation may not be reasonable, unless the person would otherwise be able to sustain a relatively normal life at more than just a minimum subsistence level.
If the person would be denied access to land, resources and protection in the proposed area because he or she does not belong to the dominant clan, tribe, ethnic, religious and/or cultural group, relocation there would not be reasonable. For example, in many parts of Africa, Asia and elsewhere, common ethnic, tribal, religious and/or cultural factors enable access to land, resources and protection. In such situations, it would not be reasonable to expect someone who does not belong to the dominant group, to take up residence there. A person should also not be required to relocate to areas, such as the slums in an urban area, where they would be required to live in conditions of severe hardship."
These guidelines are, I think, helpful, concentrating attention as they do on the standards prevailing generally in the country of nationality. Helpful also is a passage of socio-economic factors in Storey, op cit, 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."
21. In arguing, on behalf of Messrs [H,G and M] that internal relocation is never an available option where persecution is by the authorities of the country of nationality, Mr Gill QC gains support from the conclusions of the San Remo experts in 2001. They considered that where the risk of being persecuted emanates from the State (including the national government and its agents) internal relocation "is not normally a relevant consideration as it can be presumed that the State is entitled to act throughout the country of origin". The UNHCR Guidelines of July 2003 similarly observe (paragraph 7 I (b)):
"National authorities are presumed to act throughout the country. If they are the feared persecutors, there is a presumption in principle that an internal flight or relocation alternative is not available."
There can, however, be no absolute rule and it is, in my opinion, preferable to avoid the language of presumption. 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. The source of the persecution giving rise to the claimant's well-founded fear in his place of ordinary domicile may be agents of the state authorised or directed by the state to persecute; or they may be agents of the state whose persecution is connived or tolerated by the state, or not restrained by the state; or the persecution may be by those who are not agents of the state, but whom the state does not or cannot control. These sources of persecution may, of course, overlap, and it may on the facts be hard to identify the source of the persecution complained of or feared. There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department  EWCA Civ 74  I WLR 1891, paragraph 55, a spectrum of cases. The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls. The more closely the persecution in question is linked to the state, and the greater the control of the state over those acting or purporting to act on its behalf, the more likely (other things being equal) that a victim of persecution in one place will be similarly vulnerable in another place within the state. The converse may also be true. All must depend on a fair assessment of the relevant facts".
"Fifthly, adoption of the rule would give the 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 of 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 risk of inhuman or degrading treatment or punishment."
At paragraphs 47-50 and 54 Lord Hope said:
"47. The question where the issue of internal relocation is raised can, then, be defined quite simply. As Linden JA put it is 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.
48. Care must, of course, be taken to allow the argument that there is an internal relocation option to defeat the basic purposes of the Convention. That is why there is a further question that must be considered where the claimant has a well-founded fear of persecution for a Convention reason which is due to action taken, or threatened to be taken, against him by the state or by state agents within the country of his nationality and it is suggested that he could reasonably be expected to live in a place of relocation there. The dangers of a return to a country where the state is in full control of events and its agents of persecution are active everywhere within its borders are obvious. It hardly needs to be said that in such a case internal relocation is not an option that is available. Remoteness of the suggested place of relocation from the place of origin will provide no answer to the claimant's assertion that he has a well-founded fear of persecution throughout the country of his nationality.
49. On the other hand control of events by the state may be so fragmented, or its activities may be being conducted in such a way, that it will be possible to identify places within its territory where there are no grounds for thinking that persecution by the state or its agent of the claimant for a Convention reason will be resorted to. A civil war may take that pattern where the extent of it is localised. So too may the process of ethnic cleansing affecting people of the claimant's ethnicity which is in progress in one area but not in others. The state may be ruthless in its attempts to move people of a given ethnicity out of one area. But it may be benign in its treatment of them when they reach an area which it regards as appropriate for people of that ethnicity. Of course, one kind of brutality may lead to another. Those who object to the state's policy may be treated differently from those who do not, wherever they happen to be for the time being. And those who move to a safe area may be at risk of being forced to move back again. The situation in the country of the claimant's nationality may be so unstable, or the persecution which the state condones in one place may be so difficult to limit to a given area, that it would be quite unreasonable to expect the claimant to relocate anywhere within its territory.
50. In practice the tribunal tries to provide guidance as to how cases that originate from areas of particular difficulty should be dealt with. The country guidance cases that have already been mentioned seek to achieve this result: see AB (return of Southern Sudanese) Sudan CG  UKIAT 00260; MM (Zaghawa – Risk on Return – internal Flight) (Sudan)  UKAIT 00101. Where this is done, that guidance should be followed by immigration judges. It is desirable that they should do so in the interests of fairness and consistency. But in the end of the day each case, whether or not guidance is available, must depend on an objective and fair assessment of its own facts".
54. Once it is accepted, as in my opinion it must be, that a comparison between the basic norms of civil, political and socio-economic rights that are regarded as acceptable internationally and the situation in Kosovo is not relevant, the argument that there was a defect in the Court of Appeal`s reasoning in Mr Januzi`s case falls away. I would wish to sound a note of caution on one point only. In paragraph 28 of his judgment Buxton LJ said that conditions which extend throughout Kosovo are irrelevant because they apply in both cases and cannot be taken into account in the balance. I would prefer to put the point that he was making differently. It is the fact that there is a difference between the standards that apply throughout the country of the claimant's nationality and those that are regarded as acceptable internally, and this fact only, that is irrelevant. The fact that the same conditions apply throughout the country of the claimant's nationality is not irrelevant to the question whether the conditions in that country generally as regards the most basic of human rights that are universally recognised – the right to life, and the right not to be subjected to cruel or inhuman treatment – are so bad that it would be unduly harsh for the claimant to have to seek a place of relocation there. As Mr Rabinder Singh QC for the Secretary of State observed, one does not need to rely on the European Convention on Human Rights to conclude that if conditions are that bad relocation there would be unduly harsh. But the evidence about the conditions in Kosovo on which Mr Blake relies does not begin to approach that standard…"
The General Issues
Our evaluation of the expert evidence
"An expert should consider all material facts, including those which might detract from his opinion".
Risk to involuntary returnees from Sudan
"In general, Sudanese nationals who have been abroad for some time can enter Sudan without any problems. Leaders and high ranking members of opposition political parties, however, may encounter problems with the security forces on return to Sudan. This, however, would not apply to members of the Umma Party as the leader and leading members of the Umma Party have returned to Sudan recently without any hindrance by the security forces. Members of the SPLM/A who have been abroad and would like to return to Sudan would be at risk of persecution. People returning to Sudan from countries having strained or hostile relations with Sudan may be questioned about their activities in the country or countries they had been in."
Risk to failed asylum seekers
Risk to persons eligible for military service
It will quickly be apparent to the officials at Khartoum airport if a person has been absent from Sudan for months or years. This would make the person immediately liable to suspicion as a draft evader.
Sudan conscripts its young people into the armed forces (either the regular army or the ODF). There are no exemptions, and no facilities for conscientious objection. If a person is found to have evaded his conscription, he will be liable – at best - to detention and interrogation and a sentence of imprisonment. If he is found to have left Sudan in order to evade conscription, it is not unlikely that he will be detained, interrogated and tortured.
As stated in the UNHCR paper (February 2006), a decree passed in 2003 authorises the detention of all people who left Sudan after the coup of 1989 and have been away for over 12 months. Detainees may be subjected to 'investigation' and 'necessary security measures'. UNHCR posits that young men of conscript age are particularly at risk of such detention, which is currently being applied selectively. Given the hostility referred to herein towards the UK and the nature of the armed conflict in Darfur, it is, in my view, highly likely that a person from Darfur who has been out of Sudan for many months and has sought to stay out of Sudan in the UK would be subject to this detention and measures as described. There is no monitoring or scrutiny of national or international organisations regarding the treatment of such detainees' (emphases added).
"33. ..a clear preponderance of evidence to the effect that the general response of the Sudanese authorities to draft evaders when caught is not to imprison them, but to take steps instead to ensure they are seen to serve in the army, under supervision. Thus the 2001 Danish FFM report (which is the most detailed and multi-sourced study on this issue) states that:
"A well informed local source in Cairo said that deserters were not normally punished with imprisonment. [In 2001] if a deserter was caught he would be sent to the front under genuine threat of harassment and under close supervision. Otherwise the sentence for desertion was three years, but there had been few examples of deserters being sentenced to three years in prison."
34. The same report noted further that:
"The same well informed [Cairo] source also explained that a person's ability to avoid military service in Sudan [in 2001] would depend very much on his and his family's connection to the regime, and the social and economic position for the family in Sudan."
35. The report also states that two other sources, Barach and Ngot, confirmed that deserters were not usually imprisoned, but were often sent directly to the front under close supervision. It stated that another source, Lehne, said that in practice the military authorities did not insist on sentences [for avoiding military service] (52). At p.53 it noted that a further source, El Mufti, was not aware of cases of deserters or draft evaders being punished for their actions. If the authorities caught such people they would simply demand that they returned to service.
Accordingly, we conclude that the background evidence considered in the round does not demonstrate that draft evaders and deserters in general face a real risk of imprisonment in Sudan."
Risk to returnees of Darfuri origin
"Furthermore, where internal displacement is a result of "ethnic cleansing" policies, denying refugee status on the basis of the internal flight or relocation concept could be interpreted as condoning the resulting situation on the ground and therefore raises additional concerns".
"The Aegis Trust is in contact with a person now resident outside Sudan and the UK who was returned as a failed asylum seeker from Darfur [her footnote here states `[t]he circumstances of the failure to obtain refugee status in the UK is immaterial for this account`]. This person reports that he was detained at Khartoum International Airport, questioned at length on his activities in the UK and his connections to the rebels in Darfur and beaten when he could not give `satisfactory` information. He was eventually released and instructed to return three times a week with information about rebels. He did not have this information and having returned a couple of times only to be further mistreated, made arrangements with a relative to leave Sudan again…".
Darfuris in Khartoum proper
Conditions for IDPs in Khartoum State
Life in squatter areas and IDP camps
"The socio-economic conditions in the proposed area will be relevant in this part of the analysis. If the situation is such that the claimant will be unable to earn a living or to access accommodation, or where medical care cannot be provided or is clearly inadequate, the area may not be a reasonable alternative".
"It is the fact that there is a difference between the standards that apply throughout the country of the claimant's nationality and those that are regarded as acceptable internationally, and this fact only, that is irrelevant. The fact that the same conditions apply throughout the country of the claimant's nationality is not irrelevant to the question whether the conditions in that country generally as regards the most basic of human rights that are universally recognised – the right to life, and the right not to be subjected to cruel or inhuman treatment – are so bad that it would be unduly harsh for the claimant to have to seek a place of relocation there. As Mr Rabinder Singh QC for the Secretary of State observed, one does not need to rely on the European Convention on Human Rights to conclude that if conditions are that bad relocation there would be unduly harsh."
Risk to persons of Darfuri origin
Particular risk categories
Persons from Darfur "hotspots"
"As mentioned above, because the SLM/A and the JEM control large parts of Darfur, and because the armed conflict is between rebels and the GoS, the latter perceive the civilian population of Darfur as partisan to the rebels. This is especially so if the person concerned is from an area considered to be a rebel `stronghold`. Men of less than 40 years old, are suspected of being aligned with the rebel groups (sharing the characteristics with the rebel leadership) and so are more likely to be detained for questioning".
Students, merchants/traders, lawyers, journalists, trade unionists, teachers, intellectuals and tribal leaders
"16. It is not necessary to have a history of political involvement in the sense of party activism to be regarded as a rebel or rebel sympathiser. The most publicised cases of arrests outside Darfur have been those of persecuted Darfur students, community leaders, traders, lawyers and others with some measure of access to human rights bodies. However, it is not only these most articulate and well-connected members of the community who are potentially at risk. Less prominent individuals have simply disappeared without trace."
"Amnesty International (AI) and the Sudan Organisation Against Torture (SOAT) recorded in October and December 2004 and January 2005, that Darfuris residing in Khartoum and other areas of north Sudan were arrested and detained, apparently on suspicion of supporting the armed opposition groups in Darfur…The vast majority of the cases reported by AI and SOAT involved students, educated persons, or influential members of a tribe or community, such as Sheiks and Omdas…".
"Since summer, students have been targeted very much. More and more students from Khartoum University have been arrested and tortured. Students who were active in student unions or who were in contact with Darfuri students or Nuba students – various activities that were not in line with the official student movement of the regime. As in many countries, students appear to be politically more sensitive and more active, but there is no real development of new opposition forces in any organised way yet, and it would certainly not be permitted by the regime."
Risk on return for sur place reasons
"We realise that this may encourage the misuse of the asylum system by persons who, without having real protection needs, want to create a refugee claim for themselves through irresponsible/opportunistic actions. This consideration is, no doubt, an important one, as the misuse of the asylum system may eventually be detrimental to the interests of bona fide asylum-seekers and genuine refugees. For this reason, UNHCR would not object to a more stringent evaluation of the well-foundedness of a person's fear of persecution in cases involving opportunistic claims.
In this connection, it should be borne in mind that opportunistic post-flight activities will not necessarily create a real risk of persecution in the claimant's home country, either because they will not come to the attention of the authorities of that country or because the opportunistic nature of such activities will be apparent to all, including to those authorities."
"I wish to end this judgment by saying that nothing in it should be read as giving any kind of green light to bogus asylum-seekers. If the UNHCR's guidance is followed, in the vast majority of cases of the type I have been considering the claim for asylum will be peremptorily dismissed without any real difficulty. It is only in what Lee J in [Mohammed v Minister for Immigration and Multicultural Affairs  FCA 868 (Federal Court of Australia)] describes as an extraordinary case that a genuine entitlement to protection from refoulement may arise, and in such a case the claim should be tested on the principled basis I have set out in this judgment. It should not be rejected peremptorily on a basis that appears to have no sound foundation in international law".
"Of course, the Sudanese government observes activities of Sudanese nationals in Europe. Each consulate or embassy has at least two security officers who deal with intelligence information. Each event that is related to Sudan is attended by people from the embassy who observe and report – not to the minister of foreign affairs, but directly to their headquarters in Khartoum. The security apparatus, consisting of both internal security and intelligence service, monitors the activities of Sudanese citizens abroad."
Summary of conclusions
(1) The fact that a returnee has unsuccessfully sought international protection in the United Kingdom is likely to be known to the Sudanese authorities, either by way of a generalised assumption (based upon his documentation) or as a result of the questioning which he is likely to receive at the airport from the immigration authorities. However, a person will not as such be at real risk on return to Khartoum, either at the airport or subsequently, simply because he or she is an involuntary returnee of Sudanese nationality (paragraphs 172-182).
(2) A Sudanese national will not be at risk on return to Khartoum either at the airport or subsequently merely because he or she is a failed asylum-seeker. Although the fact of having claimed asylum (and having spent time in the UK) is likely to be known to the Sudanese authorities there, the evidence does not suffice to show that this would make him or her the subject of adverse attention (paragraphs 183-186).
(3) A person who may be eligible for military service will not be at risk on return for that reason alone, even if he or she is or would be perceived as being a draft evader or deserter (paragraphs 187 to 194).
(4) A person will not be at risk on return to Khartoum either at the airport or subsequently solely because he or she is of Darfuri origin or non-Arab Darfuri origin. Neither at the airport or subsequently will such a person face a real risk of being targeted for persecutory harm or ill-treatment merely for that reason (paragraphs 195 to 220).
(5) The evidence does not show that any returnee of either of the origins described in sub-paragraph (4) will, regardless of their personal circumstances, have no option but to live in an IDP camp or a squatter area, if returned from the United Kingdom to Khartoum. It has not been suggested that the Sudanese authorities have a policy of requiring a returnee of either of the origins described in sub-paragraph (4) to go and live in IDP camps or squatter areas. The burden of proof is on the appellant to show a reasonable likelihood of having to live in such a place. This will involve showing that it is not reasonably likely that the returnee will have any money, or access to money, or access to friends or relatives who may be able to assist in helping the returnee to establish him or herself (paragraphs 221-228).
(6) But even if a such a person shows that it is reasonably likely he or she will end up in such a camp or area, conditions there, though poor, are not significantly worse than the subsistence level existence in which people in Sudan generally live. Applying the principle set out in Januzi, the conditions in such camps or areas are not generally such as to amount to unduly harsh conditions (paragraphs 229-245).
(7) Health facilities in the camps and squatter areas of Khartoum are, compared with the provision of such facilities in Sudan as a whole, not as bad as to deprive those living there of the most basic of human rights that are universally recognised. A person who bases his claim on a medical condition for which he is being treated in the UK must do so by reference to the article 3 test espoused by the House of Lords in N or show truly exceptional circumstances contrary to article 8 (paragraphs 246-260).
(8) Sub-paragraphs (1)-(7) above deal with the general assessment of risk and of likely conditions on return. However we do think that there will be persons who may be able to show that to return them to Khartoum would be contrary to the United Kingdom's obligations under either the Refugee Convention or Article 3 of the ECHR or both because of particular risk factors arising in their case:
i. The fact that a person of non-Arab Darfuri origin is from one of the villages or areas of Darfur which are "hotspots" or "rebel strongholds" or whose village has been raided by the Janjaweed and/or government forces would not in itself give rise to a real risk of persecutory harm, although it would be a significant factor when assessing risk on return if, for example, he was from one the villages from which the current rebel leaderships come or if he has spent some time recently in Chad (paragraphs 267-270).ii. However, persons whose conduct marks them out as oppositionist or anti-government activists remain a current risk category. Persons in this category may include some (but certainly not all) students, merchants/traders, lawyers, journalists, trade unionists, teachers and intellectuals. Such conduct may take the form of being a political opponent of the government or of speaking out against the government. It may also take the form of being a member of a student organisation that is allied to an opposition party or that is opposed to the government's policies (paragraphs 271-283).iii. Those who have been tribal leaders of Darfuri tribes whilst in Sudan are also likely to be at real risk on return (paragraph 280).iv. Not all sur place activities conducted by a Sudanese citizen, whilst in the United Kingdom, will give rise to a real risk on return. Whilst the fact that a person has engaged in such activities may become known as a result of questioning, if not through the work of Sudanese intelligence agents, the authorities are reasonably likely to be concerned only about activities which they regard as significantly harmful to their interests and will not be concerned about a person who is in reality an apolitical opportunist. Nor will mere knowledge on the part of the Sudanese authorities about at least some details of a Sudanese asylum-seeker's claim (e.g. following publicity about a high-profile case) suffice (paragraphs 286-304).v. A female returnee will not be at real risk unless there is reason to believe her to be associated with a man who is of adverse interest to the authorities. However if a woman shows that there is a reasonable likelihood that she will be returned as a female head of household to live in a squatter area or IDP camp, the circumstances of her case may call for consideration as to whether they would give rise to treatment contrary to Article 3 or undue hardship (paragraphs 305-308).
Our assessment of the appellants' individual cases
"But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason".
"Although the appellant could not have relocated at the time of his alleged problems due to difficulties with movement, on his return to Sudan he would not have to return to Darfur. He would be returned to Khartoum from whence he could move to another area in Sudan."
"if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can [emphasis supplied] reasonably be expected to stay in that part of the country".
Senior Immigration Judge Storey
Background Materials considered by the Tribunal (in chronological order):
|Udloendinge Styrelsen Report on fact-finding mission to Cairo, Khartoum and Nairobi: Human rights situation, military service, and entry and embarkation procedures in Sudan||08.08.01– 19.08.01
|Paper by Samia Elsheikh and Chamhuri Siwar, Faculty of Economics, Universiti Kebangsaan Malaysia: "Tenant Households and Poverty in the Gezira Irrigated Areas, Sudan: Analysis and Implications"||October 2002|
|Home Office statistics: Asylum applications received in the UK by Sudanese nationals, 2004||2004|
|Home Office statistics: Removals and voluntary departures of Sudanese asylum applicants, 2004||2004|
|Letter from Jan Shaw, Refugee Programme Director, Amnesty International to White Ryland Solicitors||20.02.04|
|BBC News: "Refugees killed in Sudan riots"||18.03.04|
|Allafrica.com UN Integrated Regional Information Networks: News: "Sudan: Darfur is World's Greatest Humanitarian Disaster, Says UN Official"||22.03.04|
|SOAT Sudan Organisation Against Torture: Arbitrary arrest of two students in Khartoum||01.10.04|
|Amnesty International AFR 54/133/2003 UA 258/04 Human Rights Defender / Fear for safety||08.10.04|
|Irinnews.org: UN Office for the Coordination of Humanitarian Affairs: "Sudan: Demolitions render thousands of IDPs homeless"||15.10.04|
|SOAT Sudan Organisation Against Torture: Arrests and torture of Darfurian Students||20.10.04|
|UNHCR Map: Darfur Administrative Units||24.11.04|
|Amnesty International: "Sudan No one to complain to: No respite for the victims, impunity for the perpetrators"||December 2004|
|Africa on the move: an urban crisis in the making – A submission to the Commission for Africa by Dr Anna Kajumulo Tibaijuka, Under Secretary General of the United Nations||Dec 2004|
|Freedom House: Freedom in the World – Sudan (2005)||2005|
|HDR 2005, Country Fact Sheets: Sudan. The Human Development Index – going beyond income.||2005|
|Home Office statistics: Removals and voluntary departures of Sudanese asylum applicants||Jan 2005 – Mar 2006|
|Khartoum State Interagency Rapid Assessment Report Nov/Dec 2004||19.01.05|
|Global IDP: Profile of Internal Displacement: Sudan||24.03.05|
|UNHCR Map: IDP and Refugee Locations – West Darfur and Eastern Chad||05.05.2005|
|Amnesty International AFR 54/047/2005 UA 116/05 Fear for safety||09.05.05|
|BBC News/World/Africa: "A violent day in Khartoum's suburbs"||24.05.05|
|Amnesty International Sudan: List of Political Detainees||24.05.05|
|Amnesty International AFR 54/053/2005 UA 136/05 Fear of Torture or ill-treatment/Fear of Arbitrary Arrest||24.05.05|
|Amnesty International AFR 54/060/2005 Fear of Torture/Fear of Arbitrary Arrest/Incommunicado detention/Death in Custody||16.06.05|
|Amnesty International AFR 54/061/2005 Fear of Torture/Fear of Arbitrary Arrest/Incommunicado detention/Death in Custody||24.06.05|
|Lives in Our Hands: Darfuri asylum seekers facing removal to Khartoum, The Aegis Trust||30.06.05|
|Okenden International article: "Historic Day in Sudan"||08.07.05|
|Medecins Sans Frontieres article: "Malnutrition: A Critical Situation in Akuem, Sudan"||20.07.05|
|Sudan Humanitarian Review||15.08.05- 15.09.05|
|Amnesty International Public Statement AFR 54/072/2005 "Sudan: The rights of Khartoum's displaced must be respected"||23.08.05|
|United Nations Security Council: Report of the Secretary General on the Sudan||12.09.05|
|UNHCR Sudan Locator Map||October 2005|
|Action Against Hunger article: "Crisis in South Sudan"||05.10.05|
|Irinnews.org: UN Office for the Coordination of Humanitarian Affairs: "Sudan: Khartoum destruction triggers southern returns"||07.10.05|
|UNHCR Map: Darfur IDP Gatherings Map||08.10.05|
|FIDH.ORG Arbitrary detention / Ill-treatment / Judicial proceedings – SDN 002 / 1005 / OBS 096||20.10.05|
|FIDH.ORG Call for an immediate stop of forced relocations of the 2 million IDPs around Khartoum||21.10.05|
|Amnesty International AFR 54/074/2005: UA 277/05 Arbitrary Arrest/Fear for safety/prisoner of conscience||21.10.05|
|United Nations Security Council Report of the Secretary-General on the Sudan||12.09.05|
|Action Against Hunger article: "Another Niger? Emergency in Southern Sudan Ignored"||19.09.05|
|The Economist Intelligence Unit – Country Report: Sudan; "Sudan at a glance 2006-07"||Dec 2005|
|unsudanig.org – Project Details for Project: SUD-06/P/HR/RL70||Dec 2005 – Dec 2006|
|10th European Country of Origin Information Seminar, Budapest. Final Report||01.12.05-
|United Nations Sudan Situation Report||10.12.05|
|Amnesty International> Annual Reports> Report 2006: Africa: Sudan||2006|
|United Nations System - Standing Committee on Nutrition: "Nutrition in Crisis Situations" Vol 8||Jan 2006|
|UNHCR Human Rights Watch World Report 2006 – Sudan – January 2006||Jan 2006|
|unsudanig.org – Project Details for Project: SUD-06/E24||Jan – Dec 2006|
|unsudanig.org – Project Details for Project: SUD-06/H73||Jan – Dec 2006|
|unsudanig.org – Project Details for Project: SUD-06/H80||Jan – Dec 2006|
|unsudanig.org – Project Details for Project: SUD-06/E16||Jan – Dec 2006|
|unsudanig.org – Project Details for Project: SUD-06/E12||Jan – Dec 2006|
|unsudanig.org – Project Details for Project: SUD-06/E28||Jan – Dec 2006|
|unsudanig.org – Project Details for Project: SUD-06/H69||Jan – Dec 2006|
|United Nations Economic and Social Council: Commission on Human Rights: Advisory Services and Technical Cooperation in the Field of Human Rights: Report of the Special Rapporteur on the human rights situation in the Sudan, Sima Samar E/CN.4/2006/111||11.01.06|
|Physicians for Human Rights: "Darfur – Assault on Survival: A call for security, justice and restitution".||11.01.06|
|Report by Peter Verney: Sudanese nationals||13.01.06|
|Medecins Sans Frontieres article: BBC World: Doctors on the frontline||16.01.06|
|Human Rights Watch World Report 2006: Sudan||18.01.06|
|Amnesty International Press Release "Sudan: Amnesty International representatives detained and human rights activists harassed" AFR 54/001/2006||23.01.06|
|Amnesty International USA Issue Brief "Sudan: Ending the Nightmare in Darfur"||February 2006|
|UNHCR's Position on Sudanese Asylum-Seekers from Darfur||10.02.06|
|OHCHR Report of the Representative of the Secretary-General on the human rights of internally displaced persons. Walter Kalin. United Nations Economic and Social Council: Specific Groups and Individuals: Mass Exoduses and Displaced Persons. Mission to the Sudan 3-13th October 2005||13.02.06|
|United Nations Mission in Sudan Media Monitoring Report by Public Information Office||14.02.06|
|FCO "The People of Darfur Want Peace" Darfur at the Crossroads – Jack Straw||14.02.06|
|Medecins Sans Frontieres article: Darfur, Sudan: 'The chronic insecurity has led us to redefine and step up our activities'||16.02.06|
|OHCHR United Nations Economic and Social Council: Report of the Special Rapporteur, Philip Alston on extrajudicial, summary or arbitrary executions: Follow up to country recommendations (Sudan excerpt)||28.02.06|
|Sudan Tribune article: "Khartoum state to relocate IDPs"||18.02.06|
|FIDH.ORG Human rights and humanitarian organisations at risk in Sudan||07.03.06|
|USSDR US Department of State Country Reports on Human Rights Practices – Released by the Bureau of Democracy, Human Rights, and Labor: SUDAN||08.03.06|
|Home Office Country of Origin Information Report: SUDAN April 2006||10.03.06|
|United Nations Security Council: Report of the Secretary General on the Sudan||14.03.06|
|Amnesty International Public Statement AFR/54/009/2006 (Public): "Continued harassment of Sudanese NGO and curtailment to freedom of expression and association in Sudan".||16.03.06|
|Daily Press Review, humanitarianinfo.org/darfur…||20.03.06|
|OHCHR Report of the Special Representative of the Secretary-General, Hina Jilani, on the situation of human rights defenders: Summary of cases transmitted to Governments and replies received (Sudan excerpt) – Promotion and Protection of Human Rights: Human Rights Defenders||22.03.06|
|Extract: Sudan COI Report April 2006: "Internally Displaced Persons" / "Medical Services" / "Accord: 3.9 Internally Displaced Persons"||April 2006|
|Amnesty International Public Statement: Sudan: Continuing blockade of humanitarian aid AFR 54/010/2006||04.04.06|
|Country of Origin Information (COI) Request. Country: SUDAN. Subject: IDP's in Khartoum||Reply of 05.04.06|
|European Parliament resolution on Darfur||06.04.06|
|Aegis Report: Note by the Representative of the UN Secretary-General on the human rights of internally displaced persons, Walter Kalin, on conditions in Khartoum camps accommodating displaced persons||10.04.06|
|SOAT Annual Report the Human Rights Situation in Sudan March 2005-March 2006||12.04.06|
|Amnesty International - The Wire Vol 36 No.4: Paragraph on SUDAN||May 2006|
|United Nations Country Team in Sudan: United Nations Sudan Situation Report||04.05.06|
|Extract: Operational Guidance Note: Sudan: 4.4 Medical Treatment||05.05.06|
|United Nations Press Release: Statement by UN High Commissioner for Human Rights Louise Arbour following her visit to Sudan from 30 April to 5 May 2006||05.05.06|
|United Nations News "Sudan: UN rights chief paints grim picture of worsening Darfur crisis"||05.05.06|
|Home Office Operational Guidance Note: SUDAN||05.05.06|
|Amnesty International Public Statement: African Commission on Human and Peoples' Rights: Oral statement on forced evictions in Africa AFR 01/005/2006||11.05.06|
|PBS Online: Online NewsHour Report , Africa > Business & Economy > China Influence on Rise in Sudan > "Chinese Investment Spark Economic Boom in Sudan"||15.05.06|
|Guardian.co.uk "Darfur's rebel forces turn on each other"||17.05.06|
|Irinnews.org: "Sudan: Fleeing war to face starvation"||18.05.06|
|CARE: "Sudan: The Journey Home"||18.05.06|
|Ein.org.uk "United Nations 'Report of the Secretary-General on Darfur'"||19.05.06|
|Amnesty International Report 2006: Sudan||23.05.06|
|Ein.org.uk "Third periodic report of the United Nations High Commissioner for Human Rights on the human rights situation in the Sudan"||23.05.06|
|ABC Online article (Australian Broadcasting Corporation): "Cholera outbreak kills at least 500 in south Sudan"||24.05.06|
|Amnesty International USA Statement "Amnesty International USA Welcomes Important Steps Taken by Bush Administration and Congress to Improve Situation in Darfur"||25.05.06|
|Amnesty International Press Release AFR/54/019/2006 (Public): "Sudan: UN Security Council must meet 'responsibility to protect' civilians"||25.05.06|
|Medecins Sans Frontieres article: Darfur, Sudan: no peace, no food||25.05.06|
|Letter from Hafiz Mohamed, Darfur Programme Coordinator, Justice Africa||26.05.06|
|The American University in Cairo, Forced Migration and Refugee Studies (FMRS): "A tragedy of failures and false expectations" – Report on the events surrounding the three-month sit-in and forced removal of Sudanese refugees in Cairo, September – December 2005.||June 2006|
|Aegis Report: Safe as Ghost Houses: Prospects for Darfur African Survivors Removed to Khartoum by Sarah Maguire, Commissioned by The Aegis Trust||June 2006|
|Ein.org.uk: Voice of America News, "Camps for Darfur Displaced Becoming Like Home"||05.06.06|
|Ein.org.uk: "Groups Urge President Bush to Speed Deployment of International Force in Darfur; US Must Do More to Meet Humanitarian Needs and Press All Parties to Implement Darfur Peace Agreement".||05.06.06|
|Ein.org.uk: United Nations News. "Security Council members hold talks with Sudan's President in Khartoum"||06.06.06|
|Report by Peter Verney: Sudanese nationals UPDATED REPORT for the purposes of this case, with revision and reiteration of points & additional background references||07.06.06|
|Sudan Development Program article on water and sanitation & The Water Development Program||Printed from website
|UNICEF article: "Crisis in western Sudan"||Printed from website
|Sarah Maguire Expert Report (and addenda)||8.06.06|
|Report of Mohamed Baraka Mohamed Nourain||09.06.06|
|UNICEF Sudan Statistics: Basic Indicators / Nutrition / Health / HIV AIDS / Education / Demographics / Economics / Women / Child Protection / Rate of Progress||Printed from website 14.06.06|
|OHCA / Financial Tracking Service - Consolidated Appeal: Sudan Work Plan 2006 (Humanitarian Action Component): Agriculture / Coordination and support services / Economic recovery and infrastructure / Education / Food / Health / Mine action / Multi-sector / Protection-Human Rights- Rule of Law / Sector not yet specified / Security / Shelter and Non-food items / Water and sanitation||14.06.06|
|Note from Barbara E Harrell-Bond||19.06.06|
|unsudanig.org – Project Details for Project: SUD-06/E23||Nov – Dec 2006|