HGMO (Relocation to Khartoum) Sudan CG [2006] UKAIT 00062
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 20 and 21 June 2006
Date Determination notified: 3 August 2006
Before
THE HONOURABLE MR JUSTICE HODGE OBE, PRESIDENT
SENIOR IMMIGRATION JUDGE STOREY
SENIOR IMMIGRATION JUDGE LANE
Between
HGMO
|
APPELLANT |
and
|
|
| Secretary of State for the Home Department |
RESPONDENT |
For Appellant H: Mr A. Mahmood, Counsel, instructed by Messrs Blakemores Solicitors
For Appellant G: Mr B. Ali, Solicitor, of Messrs Aman Solicitors
For Appellant M: Mr C. Jacobs, Counsel, instructed by Messrs White Ryland Solicitors
For Appellant O: Ms L. Brakaj, Solicitor, of Messrs Halliday Reeves Solicitors
For the Respondent: Ms L. Giovannetti, Counsel, instructed by the Treasury Solicitor
DETERMINATION AND REASONS
(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 [2005] UKAIT 00101 and MH (Darfurians: relocation to Khartoum?) Sudan CG [2006] 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 [2006] 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.
- This determination deals with a number of issues relating to the return of Sudanese nationals, including those of non-Arab Darfuri origin, to Khartoum. On 15 February 2006 the House of Lords remitted the appeals of the first three appellants (hereinafter referred to as appellant H, appellant G and appellant M) to the Tribunal for reconsideration (Januzi v. Secretary of State for the Home Department & Ors [2006] UKHL 5).
- The appeal of the fourth appellant comes before us as a second-stage reconsideration, a panel having found on the last occasion that there was a material error of law on the part of the adjudicator in allowing his appeal.
- All four appellants are members of black African non-Arab tribes who reside in the western part of Sudan known as Darfur. All four were found to face a real risk of persecution in Darfur.
- As stated at paragraphs 59 and 60 of the opinions in Januzi, the nature of the reconsideration in the first three appeals must take the form of a reassessment of the internal relocation alternative (within the context of the 1951 Geneva Convention relating to the Status of Refugees) that may be available to a person originating from Darfur, and the humanitarian considerations under Article 3 of the European Convention on Human Rights that may be raised by requiring a person who has fled persecution in Darfur to relocate to Khartoum. In our view the same must apply to the reconsideration of the fourth appellant's case (but see paragraph 352).
The cases of Appellants H, G and M
- At paragraphs 35 to 43 of the opinions, Lord Hope set out the nature of the claims of appellants H, G and M, the response of the Secretary of State to those claims and the findings of the adjudicator or Immigration Judge who heard the respective appeals:-
"… [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) [2005] 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.
- It is convenient to interpose at this point two matters. In June 2005, after the adjudicator had heard appellant H's appeal there was published a report by the Aegis Trust entitled "Lives in our Hands: Darfuri asylum seekers facing removal to Khartoum". Appellant H is one of the 26 people mentioned in the report as having been interviewed by the Trust. The report recites the basic facts of what happened to him in Darfur (which, as we have noted, were accepted by the Immigration Judge). The current status of his case is said, somewhat prematurely as it turned out, to be "closed", given that his "appeals have been refused". Secondly, in connection with the reconsideration, appellant H served a copy of a letter dated 17 June 2006 from a Mr Mohamed Norsal, General Secretary of "The Union of the People of Darfur in U.K. & N. Ireland". This letter asserts, on the basis of a "thorough interview" by a panel of office holders in the Union, that appellant H "is Darfurian, born in uruoo village". Attached to the letter is a colour photocopy of two photographs, showing a person (presumably appellant H) in a crowd of what appear to be demonstrators. Appellant H is holding a placard bearing words that are critical of what is happening in Darfur.
- As has already been noted, the adjudicator who heard appellant H's appeal found that he had suffered persecution in Darfur. Before the adjudicator appellant H said that his village was "Oro", which would appear to be the same place as that transliterated in the letter from the Union as ""uruoo". Before us Mr Mahmood did not seek to rely on the letter or the photographs, properly mindful of the fact that no challenge had been made to the adjudicator's case-specific findings of fact earlier in the appeal process. We have, nevertheless, approached our assessment of the risk to this appellant on return to Sudan on the basis, that he appears in the 2005 Aegis Trust report, is mentioned in the letter from the Union of the Peoples of Darfur in the United Kingdom and N. Ireland and may have attended a demonstration whilst in the United Kingdom at which he carried the placard which we have just described. Otherwise, the specific facts of appellant H's case are as found by the adjudicator.
- These are the facts of appellants G and M:-
"… [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 [2004] 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."
[Appellant M]
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: [2005] 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 [2005] UKAIT 00101."
- Although Mr Jacobs indicated on 20 June 2006 that he wished to call appellant M to give further oral evidence, he informed the Tribunal on 21 June that he would not be pursuing this matter. The case–specific findings of fact in relation to appellant M are, accordingly, those made by the adjudicator who first heard his appeal. The Tribunal has, however, taken into account, de bene esse, the following matter. Appellant M has, in an unsigned statement dated 19 June 2006, referred to his having taken part in meetings and demonstrations for the SLM (Sudanese Liberation Movement) and being a representative for that organisation in West Yorkshire.
Case of Appellant O
- The reconsideration of the Tribunal's decision on the appeal of appellant O was ordered by a Senior Immigration Judge on 31 August 2005 under section 103A of the Nationality, Immigration and Asylum Act 2002. The reconsideration first came before the Tribunal on 28 March 2006 (Senior Immigration Judge Barnes; Senior Immigration Judge McKee; Ms C. St Clair). The Tribunal decided that there was a material error of law in the determination of the Immigration Judge who had heard the appellant's appeal. It is not necessary that we set out the Tribunal`s decision on this matter since, following the conclusion of the hearing before us, the respondent`s decision in respect of appellant O was withdrawn and hence his appeal is deemed to be withdrawn (see paragraphs 351-2).
The hearing
- On 20 April 2006 the Tribunal ordered that the reconsiderations of the appeals in the cases of appellants H, G and M and the second stage of the reconsideration of the decision in the appeal of appellant O should be heard together on the basis that common questions of law and fact arose in each of them (Rule 20(a) of the Asylum and Immigration Tribunal (Procedure) Rules 2005).
- The hearing of these appeals took place over two days. Due to practical problems in finding a third day suitable to all in the near future, it was agreed by the parties that they would make their closing submissions in writing and our deliberations have taken account of those submissions.
- At the hearing we heard evidence from three expert witnesses.
The expert evidence
Peter Verney
- The first witness was Mr Peter Verney. He has worked for twenty-five years on Sudan-related issues. His recent work has included being commissioned as a special adviser to Darfur to assist the House of Commons' International Development Committee and the Overseas Development Institute from December 2004 to March 2005. He last visited Khartoum in 1989, although he had been to the South in 1998. One reason he had not been back was that threats had been made against his late wife who was Sudanese. He is the Editor of Sudan Update, an independent monitoring and information service which reviews current affairs in Sudan.
- His written report for the Tribunal was dated 7 June 2006. It was prepared in respect of the first of the appellants but addressed a range of issues common to all four appeals before us.
- His report considers that in order to understand properly the situation for displaced persons in Khartoum, one has to recognise that the central government has played a major role in the Darfur conflict. Between 2001 and 2005, 97% of the attacks on Darfur villages were by Sudan government forces and/or their proxy Arab militia (the Janjaweed). Two-thirds involved government helicopter gunship and bomber aircraft. The Janjaweed are supported by the Regional Government of Sudan and operate under the command of senior figures in the regime's security forces and the entire campaign is remarkable for its explicitly racist political ideology. This conflict represented the regime's attempt to punish an entire group of people.
- In his report he explains that someone trying to live in Khartoum after being displaced from a conflict zone would face three possibilities. He could try and go to an IDP encampment on the periphery of the capital. But that would be a place of last resort. Such camps have frequently been demolished and their inhabitants moved to new camps out in the desert periphery, often with grossly inadequate provision of water and other basic essentials.
- A second possibility would be to try and go to the unofficial squatter areas, but these areas too have been subjected to clearances and demolitions.
- A third possibility would be to try and go to an existing social network or better established community of his or her kinfolk in various parts of the city.
- However, it had to be understood that all areas of Khartoum were subject to considerable police and security police monitoring and intervention. This had a political and ethnic dimension. Even in times of peace, when starving Darfuris came to Khartoum seeking respite from famine in the mid-1980's, they were treated as undesirable aliens rather than as fellow Sudanese. But the eruption of conflict in Darfur from 2003 had intensified ethnic divides. Internally displaced persons (IDPs) from Darfur in Khartoum face not merely "difficult living conditions" but also politically driven antagonism by the authorities. The central government's security apparatus in Khartoum was pursuing a clampdown on civil society organisations assisting the victims of the Darfur conflict. The regime's treatment of displaced persons in and around Khartoum was directly related to its deliberate obstruction and threatening of humanitarian workers, human rights defenders and the media in the Darfur region itself and had many of the same elements. The government is reluctant to allow UN intervention in Darfur and the threat of prosecution for war crimes hangs over named senior figures in the Sudanese regime; these senior figures have become alarmed at the prospect of trial before the International Criminal Court and are keener than ever to silence potential witnesses and to maintain surveillance and control of all possible sources of embarrassment, protest or unrest over the Darfur crisis.
- A further factor affecting the situation of displaced Darfuris in Khartoum was that the government was very aware that they, together with other displaced persons and 'street' people, played a role in sparking the April 1985 popular uprising which brought down the dictatorship of General Numeiri. It therefore regards the influence of Darfur IDPs as a potential threat to its stability and treats those attracting the attention of the authorities as likely seditionaries.
'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.'
- The general picture was that in Khartoum forced mass removals, the destruction of homes, and arrests of IDPs, on combined racial and political grounds, were frequent occurrences. The risk of being picked on was quite strong.
- At paragraph 91 Mr Verney concluded that the actions of the Sudanese government against occupants of IDP camps included forced mass removals, racially motivated arrests and the destruction of homes, 'all of which could well be described as inhuman and degrading'.
- In his view, whilst it was true that the most publicised cases of arrests outside Darfur have been those of persecuted students, community leaders, traders, lawyers and others with some access to human rights bodies, less prominent individuals have simply disappeared without a trace. His report cited with approval the statement in the 2005 Aegis Trust report "Lives in Our Hands" that "[i]n Khartoum now if even two or three people identified as being from Darfur or talking about Darfur are seen talking by the authorities, they can be in very serious trouble. And anyone who the authorities think is supplying information to any outside organisation about Darfur will be in trouble".
- The start-point for any consideration of the situation for Darfuris if returned by the UK to Khartoum was, wrote Mr Verney, that they would face an "elevated risk" as compared with displaced Darfuris already in Khartoum. There were two dimensions to the risks that would face them. First they would be identified by a combination of their appearance and dialect as being from Darfur. This identification would lead to their being interrogated. Those authorities would start with the assumption that the person was an opposition sympathiser because of his ethnic background. The onus would be on the returnee to demonstrate loyalty to the regime, and prove he was not an opposition sympathiser. Deeply embedded racist attitudes mean that ethnic origin alone is often sufficient to trigger a cascade of worsening persecutory activities against a particular individual. Second, there was an elevated risk of this adverse attention and subsequent harm, as compared with the Darfur population already in the capital, because he will be known to have returned from the UK. He could also be suspected of having passed on incriminating evidence against the Khartoum regime relating to its atrocities in Darfur whilst abroad. If adverse interest in an individual was triggered by his or her ethnic origin in this way, he or she would then face detention in 'ghost houses' and all that was known about such places suggested frequent maltreatment.
- Even if a person managed to get through the airport, he or she faced a risk of monitoring and surveillance. Even if a person went to Khartoum, wherever he went he would soon be identified by the authorities as someone who originated from Darfur and who had gone abroad and was now returning. He would be highly conspicuous.
- At paragraph 13 Mr Verney wrote:
'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.'
- In oral evidence Mr Verney amplified a passage in his report where he described his sources of information, in particular his 'off the record' interviews with half a dozen field workers acting for major British aid agencies in Sudan, regarding the likely treatment of returnees from Sudan. All had spoken to him 'off the record' because it would place their work in jeopardy if there comments were known publicly. In terms of written sources, he considered that the most well-researched, detailed and authoritative evaluation of the situation in Khartoum was that by the UNHCR in its recent position paper: it was the UNHCR's first paper since 2001 and was in very strong terms. The other main written sources, on which he set much store, were the two Aegis Trust reports, the 2005 Report, 'Lives in Our Hands' and their very recent June 2006 'Safe as Ghost Houses - Prospects for Darfur African Survivors Removed to Khartoum' report. Hitherto the Home Office had taken the line 'we don't have the evidence', yet now the position was different.
- Mr Verney put the number of recently arrived Darfuris in Khartoum as being between 100,000 to 200,000. Asked about conditions in IDP camps and the unofficial or semi-official squatter areas, he said there had been government bulldozing of many of the spontaneous settlements and forcible relocations to desert areas where conditions were quite appalling and where people were cut off from the local informal economy and prospects of earning money from work. The further from the capital such people were, the more vulnerable, because they were out of the public gaze. The most notorious forcible relocations which had taken place had been in May 2005 in the squatter areas of Soba Aradi, which left sixteen police and six civilians dead while several thousand people were thrown in jail but in his view there would soon be a repeat of something similar in the near future, probably worse.
- The official explanation for these relocations was urban planning, but there was a repeated pattern of (i) complaints by aid agencies to the Commissioner of Khartoum about the arbitrary manner of the relocations and of the sending of people to places where there was no adequate provision; (ii) promises to give prior notice and ensure adequate provisions; and (iii) those promises being ignored. In his view there was a ruling group strategy behind this of keeping IDPs constantly 'on the run' so as to disrupt their lives and disperse them, rendering them incapable of fending for themselves. In his view conditions in the camps had become progressively worse. There was a regular obstruction of aid bodies. The Sudanese government had become sophisticated about appearing to go along with international agencies and their work, only to act in practice according to their own racist agenda.
- Asked about the security dimension to the position of displaced persons in Khartoum, he said it had to be understood that there was extensive monitoring and surveillance by the police and security police. They operated through an unseen informer society. It would be impossible for someone from Darfur to go to any place in Khartoum without their presence being brought to the attention of the authorities. He likened the position of an ethnic Zaghawa to someone in London from Highland Scotland, recognisable by appearance and dress.
- Asked what would make the Sudanese authorities suspicious of failed asylum seekers, he said that the ruling elite is particularly nervous of facing prosecution by the ICC for war crimes and tends to assume that anyone from Darfur going abroad and claiming asylum will have given evidence about atrocities.
- He was asked to clarify what he meant in his report about 'genuine' asylum seekers. He said that his work had involved him in interviewing (with help from two colleagues with language skills and knowledge of geography) a significant number of persons claiming to be asylum seekers from Darfur. In his view only about half were genuine. The others were simply opportunists jumping on the Darfur bandwagon. Of the opportunists, a significant number turned out on his own examination to be not from Darfur. But there were some from Darfur but who gave untrue accounts of their home areas and past experiences. There were also some members of the black African tribes such as the Zaghawa who were on the government side; that was an inevitable fact of life. A particular concern he had was that the Home Office did not seem to have a reliable way of identifying genuine Darfuri cases: he knew of instances of members of the Janjaweed militia whose true identity had not being picked up.
- People who were not genuine would not in his view face a genuine risk on return. He reiterated the view set out in his report that whilst there were certainly categories of person from Darfur who would be at special risk – students, members of opposition/rebel groups and merchants for example – even ordinary farmers could have a political opinion imputed to them.
- As regards risk of adverse treatment at the airport, he accepted that ethnic identity was not a sole indicator, but it was a major factor and one that could trigger a cascade of persecutory activities. Not everyone of adverse interest would be immediately arrested; it might also depend on how well-placed a person was in society; they might instead simply be placed under surveillance.
- Asked whether he knew of any monitoring of returns carried out by any NGO or humanitarian agencies, he said he knew of none. It was absurd to think that such monitoring would be practically feasible, not least because one needed permission to visit Khartoum airport. Given that the number of returns from Europe was small, it was not surprising that there were no reports or only reports of problems faced in one or two cases.
- It was important in his view not to over-estimate the number of persons from Darfur who had managed to seek asylum outside of Africa. Some 200,000 had fled to Chad. He estimated that there were only about 1,000 – 2,000 Darfuris in the UK – a very tiny proportion.
- Mr Verney also dealt with medical facilities. His evidence on this matter is best noted separately later on.
- In cross-examination by Miss Giovannetti, Mr Verney said that he had asked four international aid agencies contacts about their view on risk to Darfuris returned by the UK to Khartoum. None specified any particular numbers, but all four confirmed that such persons would face serious risks, because they had heard stories about people being taken away or disappearing.
- He was asked why he had not addressed in his report the relevant evidence on returnees set out in the December 2005 Accord COI (Country of Origin) Seminar. He considered that the comments of the two experts set out in that report should be read as applying to persons from the political elites, not grass roots Darfuris. He accepted that arrests at the airport were not common now; the regime's approach was now more subtle, by way of monitoring and surveillance and adverse action taken later on.
- He was asked whether it was consistent with the evidence available to him to have stated that the government had brought a complete halt to food distribution in every camp. He explained that he did not mean that the government had halted or would halt all food distribution at once, but the trend was to obstruct supplies.
- Miss Giovannetti put to him that some sections of his report were overstated. She highlighted his citation of the 2005 "Lives in Our Hands" Aegis Trust report reference to persons from Darfur being at risk simply if two or three were seen together talking. He did not mean by citing this passage, he said, that such persons would be at risk if they were just talking about the weather. But they would if they were talking about incidents in Darfur.
- He agreed that in terms of living conditions, those in the camps and squatter areas may not be worse off than in other large slum areas elsewhere in Sudan and in other African countries. But in Khartoum you could not separate living conditions from the political and security dimension, which includes the strategy of forced relocations and obstruction of humanitarian aid agencies.
- He was asked why it was that the January 2005 inter-agency multi-sectoral Rapid Assessment Survey of IDPs in Khartoum State and related evidence tended to indicate that persons from Darfur were in camps where there was some level of education for children and some provision of plots of land. He agreed he could not say for certain to what extent or how often persons in specific camps or settlements had been moved around, but he stood by what he said concerning overall trends.
Mr Mohamed Boraka Bourain
- The next witness was Mr Mohamed Boraka Nourain. His written report was said to be of general application. He is a former judge and lawyer from Sudan. He is from Darfur and of the Fur tribe. He had subsequently served as an MP in the Sudanese Parliament from 2001 to 2005. During that time he was a member in Sudan of the Parliamentary Human Rights Committee and head of the Parliamentary Subcommittee for Human Rights complaints. He had been elected an a MP as a member of the ruling party, as it was the only way for a Darfuri to have a chance of election at that time and he had hoped to be able to influence the country more from within the ruling party. However, he had left Sudan in late 2005 and had recently been recognised as a refugee in the UK.
- In his written report he states that his work as an MP required him to work closely with many of the most prominent international humanitarian organisations as well as with the US and UK embassies in Sudan. His work had also led him to meet and work closely with members of the Immigration and Intelligence services in Sudan. He had retained contact throughout all levels of these services since leaving the country. In order to protect their safety he could not name any except for a certain Lieutenant Colonel Mohamed Abdu (aka Mohamed Ibrahim), formerly of the General Security Services responsible for Darfur issues, as he had recently fled the country also (in March 2006).
- Under a subheading 'Deportees to Sudan (Including Asylum Seekers)' he wrote that the Sudanese government had a policy of screening Sudanese nationals on return to the country and particularly members of the Zaghawa, Fur and Maseleit tribes who formed the largest resistance groups in Darfur. He had been informed by immigration officials that they would particularly focus on those who did not return on their own passports, but with travel documents, or those who had had their passports replaced while they have been away. They have also told him that such persons will inevitably be stopped and arrested on arrival:
'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.'
- This, he said, would apply even to those who had not been politically active in the past. Since the signing of the peace agreement, members of both the Fur and Midoup tribes are subject to increased scrutiny because, unlike Minni Menawi's Sudanese Liberation Army (primarily of Zaghawa ethnicity), they did not sign the peace agreement.
- His report states that if someone is returned to Sudan there is no procedure to notify any independent organisations or their relatives to expect them. Accordingly, if an individual is stopped and detained at the airport, there is no prospect of anyone informing the media or campaigning for their release.
- The report states that the Intelligence and Security services in Sudan make widespread use of what are known as 'ghost houses', viz. illegal and unregistered prisons and detention facilities which are used to hold political enemies and torture them with impunity:
'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.'
- The practice of irregular detention was compounded, according to this report, by the lack of any due process or right to legal representation if a person was detained by the Immigration Services.
- Mr Nourain wrote in his report that he had information from security officials which enabled him to state categorically that the Sudanese authorities monitor political activists in Europe and use this evidence against deportees. These officials had described showing video recordings of demonstrations in Europe to persons on return to the country in the course of interrogation about their activities abroad. His understanding was that the Sudanese Embassy in the UK had a policy of filming demonstrations and trying to maintain records of those nationals of Sudan who actively campaign against them in other parts of the world:
'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.'
- He said that one should not draw inferences that things did not happen to returnees from the lack of publicity, as the media, both domestic and international, is tightly controlled in Khartoum. The government actively take steps to exclude journalists from many areas and it interferes in international investigations.
- In his oral evidence Mr Nourain reiterated that he had met and worked closely with members of the Immigration and Intelligence Service in Sudan when he was an MP and a human rights campaigner. He had been involved in raising issues with these departments. It was difficult to distinguish the work of these departments. He claimed he knew many people in these departments, but when challenged he returned to the same two individuals.
- Most of the officers he knew are from his tribe (Fur); they knew the government is neglecting people and destroying family life but they had to do their job. As regards the only informant he could name, Lieutenant Colonel Abdu, he understood he was now in Eritrea. Since leaving Sudan he (Mr Nourain) had also contacted one person in the immigration department in Khartoum in charge of issuing passports.
- He was asked to say more about the case of a person who, when returned to the airport in Khartoum was shown a video of a demonstration taken outside Sudan. The video was stopped at a particular point when an individual was shown demonstrating. The returnee was asked who that individual was, the implication being that it was the returnee himself, and that person could not say anything. Mr Nourain had been told about this case when a MP, he thought it would have been in 2002. In oral evidence, this was the only example Mr Nourain gave of the knowledge of the Sudanese authorities of demonstrations abroad and the identity of a demonstrator. He gave no details of the location of the demonstration or its size or purpose.
- He could not help with the periods of time over which he had had contacts with different officials in the passport and immigration service, but the officials were all officers.
- He believed there were perhaps three ghost houses in Khartoum.
- Cross-examined, he stated that the authorities were suspicious of all Fur, especially the young ones, but there was an exception for those who work in the government or who are in the ruling party.
- Lieutenant Colonel Abdu was in charge of all enquiries about the tribes of Sudan, especially tribes from Darfur. He was an expert on tribal links and issues. They brought people to him when they detained them for his expertise on their tribes. He last spoke to the Lieutenant Colonel in March, when the latter was in Nairobi.
- If a person was arrested and detained at the airport the family would not know the person was arrested. His information that detained failed asylum seekers would be executed was common knowledge in the security forces. It was something he had picked up.
- He had not seen a ghost house first-hand knowingly, but sometime in 2001 he had been asked by a politician whether, when they had met the time before, this had been in a ghost house. Nor had Lieutenant Colonel Abdu mentioned having been in one.
- In his opinion, if a member of the Fur, Masseleit, Zaghawa or Berti tribes is returned to Sudan, irrespective of whether he is a member of, or involved in, rebel groups or has been involved in a demonstration, he will be at risk.
- Asked about his mention of a video being shown to a returnee, he had not been told what happened to the returnee.
- In Khartoum Abdu had been a passport officer for a very long time. Asked by the panel whether his position was that all returnees were at risk or at least those without a passport, he said that all people sent back compulsorily would be at risk. Perhaps Arabs from northern Sudan would not be, unless they were involved with communist or anti-government opposition groups. Asked again to clarify his position, and in particular what would happen to a returnee who did not say he was anti-government he replied: 'If you claimed asylum anywhere, you are anti-government whether you are anti it or not'.
Sarah Maguire
- The third witness was Sarah Maguire. She has a law degree and is a barrister. Her CV outlined her work as an independent human rights consultant since February 2003 with organisations, including the UN Development Program (UNDP), the UN Office for the Coordination of Humanitarian Africa (OCHA), UN Department for Political Affairs and Department of Peacekeeping Operations, UNICEF, UNHCR and UNIFEM. She had also done consultancy work as a head adviser for the UK Department of International Development in the Conflict and Humanitarian Affairs Department. Her specialisms were forced migration, post-conflict rule of law, gender and armed conflict and children and armed conflict. She had extensive experience of the Darfur region of Sudan and of Khartoum. From September 2004 – August 2005 she carried the human rights, protection and gender portfolios of the Inter-agency Real Time Evaluation of the Humanitarian Response to the Darfur Crisis. This necessitated repeated visits to Darfur and to Khartoum, conducting interviews with internally displaced persons in camps and other areas, UN officials at all levels including the Secretary General's Special Representative and his Deputies, humanitarian NGOs and the African Union. She had last been to Darfur and Khartoum in January 2006.
- In addition to her own experience her report explained that she had relied on a number of UN and NGO reports and the report by the UK International Development Committee 'Darfur – the Responsibility to Protect' (March 2005). She also had sight, inter alia, of 'not for distribution' documents to and from NGOs, DFID and the British Embassy in Khartoum. She had also had recent (2006) discussions with informed individuals working in Khartoum, as well as discussions with a person from Darfur currently in the UK seeking international protection and had read a selected number of interviews of such persons provided to her by the Aegis Trust.
- In her report she first dealt with the armed conflict in Darfur, against the background of the Comprehensive Peace Agreement (CPA) signed in January 2005 between the main parties involved in the armed conflict in the south – Africa's longest civil war. The CPA, the introduction of the interim constitution, the setting of elections in 2009 and of a referendum on the North/South divide in 2011 and the creation of a Government of National Unity were all important developments. But they had not resulted in any positive fundamental changes to the structure of the government, its strategies or its accountability.
- The Arab/African tribal characterisation of the conflict did not mean, the report said, that it is a 'tribal war'. The Sudan Liberation Movement (SLM)/Sudan Liberation Army (SLA) and the Justice and Equality Movement (JEM) both described their grievances as being about Darfur, the place, not Darfur, the tribal home. One of the reasons why the government had turned to the Janjaweed as a proxy militia to combat these rebel groups was that it had been preoccupied with the South. Its decision to target the civilian population in Darfur was taken in 2003, in response to their view that the rebels had gained too much power in the rural areas. Although the government had asserted that it has had no control over the Janjaweed and that the latter was never under the control or command of the state authorities, the UN General Assembly, the UN Security Council and the Commission on Human Rights have all taken a different view. Nor were the signs hopeful that the Darfur Peace Agreement (DPA) signed in early May 2006 (but not by the JEM or a smaller faction of the SLM/A) would be effective: since then there has been intense fighting between the rebel groups as well as attacks on villages and civilians allegedly by Janjaweed.
- The Security Council Resolution of May 16, 2006 had been met so far by government resistance to the active involvement of UN peacekeepers. Recent clashes in neighbouring Chad had meant a deterioration in the security situation for refugees from Darfur.
- Most displacement caused by the conflict in Darfur occurred in 2003 and 2004, but during 2006 another 200,000 have been displaced. The vast majority of them are in camps in Darfur. Whilst facilities in most of the camps are substandard, the heavy involvement of humanitarian aid agencies has meant that provision can now be described as adequate. However it was not to be thought that living in an IDP camp in Darfur was a guarantee of protection.
- Turning to Khartoum, Ms Maguire's report stated that the estimate made is that Khartoum State is home to approximately 400,000 IDPs living in official camps and between 1.1 – 3.6m IDPs living in squatter areas around Khartoum city. For various reasons most IDPs from Darfur live in the squatter areas rather than the IDP camps. Her report considers that the situation in Khartoum has to be viewed in the context that the monitoring by security forces is under the control of the very powerful National Security and Information Service (NSIS). This service has powers of detention which can effectively remove people from the legal system for long periods of time. They detain people in 'ghost houses' as well as in police stations, military camps and prisons. All places of detention, but particularly the 'ghost houses' and military camps, are notorious for the level of violence that takes place. In Khartoum the NSIS has an extensive network of formal and informal information gathering. It is not possible to live in Khartoum without the NSIS knowing of one's existence and activities.
- She considers that there is a government (GoS) strategy of demolitions and/or forced relocations:
'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)'.
- Her report chronicles the May 2005 assaults by GoS security forces on the Soba Aradi settlement as well as the August 2005 destruction of the Shikhan squatter area, where the authorities again used tear gas and loaded people onto a lorry with or without their possessions. The IDPs in Shikhan were taken to an area called Al Fateh 3 in the desert zone some 55 Km outside Khartoum, where there were no facilities, clean water or sanitation or education facilities. Other people had been rounded up by the security forces from the streets of Khartoum and taken to Al-Fateh 3. She mentioned another area, Thawra, to which some 500 families were removed. It was previously a rubbish dump. This camp too lacked adequate access to water, sanitation, food or education. These forced relocations had been condemned by UN Secretary General Kofi Annan in his report to the UN Security Council of 1 September 2005. She noted various findings on IDPs made by the UN OCHA in its briefing report on the IDPs in Khartoum (March 2005) based on an interagency, multi-sectoral Rapid Assessment Survey conducted in January 2005, including that at least 665,000 Sudanese IDPs living in camps and squatter areas in Khartoum have had their homes demolished and have been relocated at some point over the last sixteen years and that demolition and relocations have been on the increase since 2003. She cited also the opinion by Professor Walter Kalin, the UN Secretary General's Representative on the Human Rights of Internally Displaced Persons in his 2006 report to the UN Commission on Human Rights. Professor Kalin has also supplemented that report in a note to the Aegis Trust stating regarding forced relocations:
'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.'
- Whilst acknowledging that one – if not the main – aim of the demolitions, forced relocations and rezoning was to secure the return of around 600,000 people to the South, Ms Maguire considers that the departures, which are starting to happen, will leave IDPs from Darfur and other northern areas:
'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.'
- Her report emphasises the fact that there is no UN or systematic international NGO monitoring of the camps or squatter areas.
- As regards living conditions she details the finding of the interagency Khartoum State Rapid Assessment Survey carried out in January 2005 which found that the situation for IDPs in Khartoum State compared unfavourably with that in Darfur both in terms of food ('[t]here is no food assistance to IDPs in Khartoum', she said), as well as security, health, water and sanitation and shelter. She cites the example of the Al-Fateh camp, another situated some 50 km outside of Khartoum in the desert. In her view the living conditions in the camps and settlements are such that people who have sought international protection would be forced to live in areas of fundamental insecurity without access to employment, financial support or humanitarian assistance. The 2006 Work Plan for the UN and its Partners made reference to the Khartoum IDPs only in terms of assisting with returns to the South; no reference is made to humanitarian or human rights assistance to this population.
- As regards return to Khartoum, it is first of all essential, she says, to understand that almost without exception people who leave Darfur and seek international protection in other countries do so without legitimate papers. In order to return to Sudan from the United Kingdom, therefore, people have to obtain travel documentation from the Sudanese Embassy in the UK. Their doing so itself alerts the Sudanese authorities to the fact that someone has arrived in the UK without a Sudanese passport – indicating that they probably sought asylum here:
'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.'
- In any event, by virtue of people from Darfur being distinctive by their appearance, accent, characteristics and names and not being amongst the affluent elite of Sudanese society, arrival off a plane from the UK:
'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'.
- A second problem Ms Maguire identifies is that anyone from Darfur is associated by the regime with the rebel resistance. Thirdly, by virtue of the fact that the UK has been in the vanguard of states calling for sanctions against the GoS ruling elite, there is a great deal of antipathy towards the UK. Accordingly, Darfuri returnees from the UK would be highly likely to be subject to detention and abusive treatment and there was no monitoring by national or international organisations regarding the treatment of such detainees nor was there any access to legal representation.
- Ms Maguire states that the Aegis Trust is in contact with a person now resident outside Sudan and the UK [currently in Egypt] who was returned by the UK as a failed asylum seeker from Darfur. 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 the 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. He is currently living outside Sudan in the region. She states:
'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.'
- Even if returnees were allowed to enter Khartoum, she added, they would risk being 'picked up' later and being subjected to the same treatment. In their situation there was little de jure and no de facto mechanism for protection and none for redress.
- Elsewhere in her report Ms Maguire emphasised that as regards the attitude of the Sudanese authorities to persons from Darfur, the fact that the SLM/A and the JEM control large parts of Darfur and the armed conflict there is between rebels and the GoS, means that the latter perceive the civilian population in Darfur as partisan to the rebels. Further:
'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.'
- Earlier on in her report she had noted that the rebel strongholds or 'hotbeds' or rebel activity included Tawile, Kutum and West Darfur.
- Ms Maguire also furnished two addendum reports in respect of the appellant G and appellant M, both written in June 2006.
- In her oral evidence Ms Maguire said she had last been in Khartoum in January 2006 although not on that occasion visiting any IDP camps. Her recent work in Sudan included interviewing 300 IDPs in Darfur and 50 in Khartoum itself. She gave further details about her extensive network of contacts with the international and diplomatic agencies in Khartoum. She understood from all those contacts that the general view among such bodies was that the conditions in the camps and squatter areas in Khartoum were poorer than those in Darfur and that they were not safe. She gave more details of the obstacles met by international aid workers in gaining access and giving assistance to IDPs in the camps and squatter areas. Recent arrivals from Darfur would not get a plot. Since the Soba Aradi events in May 2005 and those in Shikhan in August 2005 there had been loosening of access to some of the camps, but no desire to make people's lives comfortable. She did not think that any reliance could be placed on the official assurance given to international bodies that they would not again forcibly relocate people without warning and planning.
- Asked to clarify her view that Darfuri IDPs would be particularly vulnerable to arrest and mistreatment during forced relocations and at other times, Ms Maguire said that because of the nature of the conflict in Darfur such people were regarded as enemies of the state. Whilst high ranking officials from the visiting Darfur resistance might be left alone, because of their high profile, the main adverse treatment would be directed at those seen as providing support or having useful information about the resistance.
- Her belief was that the departure of southern Sudanese back to the South would place the remaining Darfuri IDPs in Khartoum more at risk. She based this belief on two main reasons: one was that there was 'safety in numbers'; the other was to do with external security (less international humanitarian agencies and international interest and focus).
- She accepted that conditions in the IDP camps and squatter areas were no worse than in some other urban slums elsewhere in Africa (if not elsewhere in the Third World also), but there were three respects in which the situation of Darfuri IDPs was worse. First, by virtue of being persons who had fled armed conflict marked by crimes against humanity, they had psychological, not just economic issues. Secondly, by virtue of many being small farmers, they were ill-equipped for urban slum conditions. Thirdly, IDPs from Darfur would not be going back to their home area in the foreseeable future.
- As regards persons returned from European countries to Khartoum, it was relevant to note that the NSIS had a desk at the Sudanese Embassy in the UK and so all information given by a Sudanese national when seeking to renew a passport or obtain a travel document would automatically be passed back to Khartoum. At the airport there would automatically be a security check. Non-Arab Darfuris would be initially or quickly identified by their ethnic appearance or dialect or personal habits. Anyone from Darfur returning from the UK would be viewed adversely, particularly given the ruling elite's anxiety about UK government initiatives in having some of them named for UN sanctions and possible ICC prosecution.
- She amplified her written view that the detention which Darfur returnees would face would involve maltreatment.
- She said that her views about risk on return were based not just on the single case of the man in Egypt, but on all the evidence gathered by others and relayed to her. She reiterated the view expressed in her written report that those of draft age would face detention and maltreatment on that basis alone. She accepted that her report had not addressed what had been said on this issue in the 2001 Danish Fact-finding report.
- She was aware of the work of Dr Alizadeh and Dr Schodder, both experts on Sudan, but had not had her attention drawn to what they had presented to the December 2005 ACCORD COI seminar on Sudan about returnees. She was frankly surprised by what they stated about lack of problems on return. She did not see how they could tell; it was not their job or that of their colleagues. It may be that there was no policy of arresting returnees at a formal policy document level, but their observations did not suggest they had in mind the situation of the Darfuri returnee from the UK where there will be an assumption that they could have said something whilst abroad about GoS atrocities in Darfur. The methods that would be used when questioning in this context would not meet international standards.
- She did not think it realistic to imagine that a returnee could arrange in advance for a friend or relative to be at the airport with a mobile phone. The mobile phone networks were unreliable. She had not once seen a mobile phone in an IDP camp. One needed permission to access the airport. Even if a friend or relative in Khartoum knew that a returnee who should have arrived and passed through the airport had not, that person would need to be someone who knew where to go and who to raise the issue with and there would be anxiety on their part that they would be putting themselves at risk.
- Even if returnees got through the airport, there would be monitoring and surveillance and in this regard it was important to recall that the NSIS utilised an extensive network of informers throughout Khartoum.
- Another consideration was that the international agencies in Khartoum had humanitarian priorities; they had no role in monitoring returns. She could only speculate on what had actually happened to the forty odd returnees from the UK over a fifteen month period in 2004-5.
- Once in Khartoum proper a returnee would need to look for accommodation. He would need an ID card as well as financial means to secure the accommodation: without an ID card one could not get legal work.
- Cross-examined by Miss Giovannetti, she said her statement in the report about there being few returnees from Europe was based on soundings among UK Darfuris who were in close touch with Darfuris elsewhere in Europe: within this diaspora she said, 'everyone knows everyone'.
- She agreed that in terms of actual cases, although she had asked a number of agencies including Human Rights Watch and UNHCR, the person from Egypt was the only specific case of returnee mistreatment she had heard about.
- Ms Maguire was asked about her view that Darfuri returnees from the UK would be viewed adversely for having very likely given witness evidence about GoS atrocities in Darfur. Was there any evidence that Darfuris in Khartoum who had come directly from Darfur were being singled out for interrogation or detention for this reason? She said that such people would be confined to more recent arrivals and there was less evidence about them. However, in the May 2005 arrests and detention in the Soba Aradi settlement, people from Darfur were disproportionately represented among the detainees and had also been held for longer. She accepted however that her earlier statement that the people in Soba Aradi were predominantly Darfuri was contrary to the Rapid Assessment Survey which showed them as 8%.
- She was asked whether she thought it significant that the Sudan human rights organisation, SOAT, spoke in its reports about being able to obtain access to persons and also appeared able to document in a precise and detailed way arrests and detention arising out of the events at Soba Aradi as well as other clashes with GoS security and police. She did not think their documentation of arrest and detention should be treated as exhaustive and plainly there were others who were simply not known about, e.g. because they had been taken to ghost houses. She had spoken to SOAT about whether they knew of any targeting of recent arrivals from Darfur, but they were unable to help.
- She gave further details on what she had said about no humanitarian assistance being supplied to the IDP camps and squatter areas in Khartoum. She accepted there was some evidence from the Rapid Assessment Survey and other surveys of some assistance, including in respect of food, education and health, but she did not think these amounted to much, being carried out by local NGOs. She accepted that what she had written in her report about the 2006 UN Work Plan was wrong. When she wrote her report the draft of the Work Plan she had seen in January 2006 contained nothing about assistance to IDPs in Khartoum, but in any event the projects now listed in the Work Plan did not look like they had sufficient levels of existing funding to be viable (i.e. at or above 35% - 40%). Further, those listed were run by very small national NGOs.
- She was asked why the views in her report as to the current situation in June 2006 did not appear to take note of developments in the IDP situation in the first half of 2006, in particular the view of Bob Turner, UNMIS Head of Returns, Reintegration and Recovery (respondent's bundle page 256) that the situation had improved dramatically in the last half of 2005 in the sense that there had not been any large scale demolitions and relocations. Ms Maguire said that it depended on how the relocations were carried out: she was not against relocations as such.
- In reply to questions from the panel, Ms Maguire said she thought Mr Verney's estimate of recent arrivals from Darfur in Khartoum of 100,000-200,000 was on the high side. She considered it unthinkable that Darfuris in Khartoum could or would go back to Darfur in the foreseeable future.
- She considered that it was 'not unlikely' that even an elderly male Darfuri with no political involvement and little education would be at risk on return, since from the point of view of the authorities, all Darfuri were capable of lending support and giving shelter to the rebels. However, the patriarchal nature of Sudanese society might mean that a woman with children would not be seen in this light. At the same time a woman returnee on her own would be regarded as a peculiar person and would be conspicuous. The authorities would know that to leave Sudan lawfully she would have needed permission from her family's menfolk.
- Asked about what steps she would take if she were a Darfuri failed asylum seeker faced with removal from the UK to Khartoum in the near future, she agreed that she might well seek to contact friends or relatives in Khartoum if there were any and that, if not, might seek help by contacting people in the Darfuri diaspora in the UK or Europe. But she reiterated her view that even if friends or relatives in Khartoum knew to expect her back, there would be the issue of their fear of the reaction of the authorities.
- She accepted that having some financial resources upon return would help a person surviving in Khartoum.
- She was asked to clarify whether her position was that all Sudanese returnees or just Darfuri returnees would be at risk. She said that it was all returnees, by virtue of the suspicion they would encounter through having gone abroad.
- The experts` reports, particularly that of Mr Verney, also dealt with the evidence relating to medical facilities, but we shall leave that to be addressed later when examining it in the context of relocation.
The background evidence
- We do not propose to summarise all of the background evidence before us, particularly as our coverage of the expert evidence refers to significant aspects of this. However, we shall highlight parts of it which have a particular bearing on the issues we have to decide. The April 2006 COIS Report on Sudan affords a convenient reference point for much of what we say here, by virtue of its extensive sourcing.
- Sudan's population is variously estimated as being between 32 and 39 million. Sudan is the biggest country in Africa. With an area of 2.5 million square kilometres, it is as large as Austria, Italy, Germany, France, Spain, Portugal, the UK and Sweden together. The distance between Khartoum and the nearest borders of Darfur is over 600km. Sudan's population encompasses a wide diversity of tribes (500 African and Arab), cultures, languages and religions, one of the principal religions in the South being Christianity. In rough percentages Sudan's population is said to consist of 50% black Africans, 40% Arabs, 6% Beja and 3-4% others. It has experienced more than 30 years of internal armed conflicts, but current divisions date back to colonial times when different policies were applied to the North and to the South. Darfur was an independent sultanate which became part of Sudan only in 1917. Even though a peace agreement was signed in January 2005 ending more than 30 years of armed conflicts in the South, there remains armed conflict in Darfur, as well as in eastern Sudan. Both sides of the conflict in Darfur are Muslims.
- The aim of the so called "Salvation Revolution" which brought the current regime to power in the 1989 coup was the islamization of Sudanese society. The current government of Sudan has a strong security and military dimension. The national security force and the military intelligence service are considered to be the most efficient organisations in Sudan. Both entities, more or less, control the country. Since its independence in 1956, Sudan has gone through a militarization process. The agricultural and industrial sectors of the economy are dominated by the military. The December 2005 ACCORD report states that according to staff members of the Sudanese Ministry of Defence and the Ministry of Finance, 80% of the budget for 2003 and 2004 was spent on the military. The Sudanese army, including Popular Defence Force militia and Borders Intelligence, as well as air force and navy, numbers approximately 200,000 (COIS April 2006 5.82). The current leadership is trying to establish Sudan as the dominant military and political power within the Arab region or at least among the North African countries, second to Egypt.
- The human rights situation in Sudan has been described as extremely poor: there is a broad range of violations of human rights including arbitrary arrests, disappearance cases, executions and torture occurring in Sudan. Censorship of the press has increased since the signing of the peace agreement. The number of arbitrary arrests and people tried for political reasons has doubled from January 2004 to January 2005. Under the 1999 National Security Act, which is still being implemented, the security apparatus has impunity and is free to detain persons arbitrarily without arrest warrants. This Act allows detention without trial and judicial review for 30 days which can be extended three times. In practice, detention can be extended indefinitely. Many detainees are held incommunicado and are not given access to lawyers. Family members are not informed about their status. Many people are detained under emergency law, especially when there are political implications. Moreover, the judicial system is heavily overloaded. The safeguards of the Criminal Procedures Act are often not implemented simply because courts cannot cope with the number of cases. Lawyers face difficulties and also there is no real independence of the judiciary.
- The conditions in prison are extremely harsh and are marked by overcrowding, lack of exercise and terrible sanitary conditions. Many detainees become ill in detention and some die as a result of lack of treatment.
- Torture is routine and widespread. Many detainees, both persons detained for political reasons and persons suspected of having committed ordinary crimes, are affected. The real number of people who are being tortured is unknown, but it may reach into thousands every year. There are a number of recorded deaths in custody as a result of torture, and even after release from the results of torture. In case of ill-treatment by security officials, there is no complaint mechanism. Whilst disappearances are not seen as taking place on a large scale, many people disappear every year.
- Members of opposition parties or movements have experienced persecution in the past and whilst in 2005-2006 there have been some improvements in their position, the regime still imprisons them from time and time.
- Members of civil society and human rights defenders are under surveillance and might be arbitrarily arrested and detained. Depending on the charges, their status and the location, they may then also be subjected to torture.
- The present government is closely involved in the armed conflict in Darfur, often lending direct assistance to the Janjaweed. In Darfur there are around 40 tribes, 28 of which are non-Arab or "ethnic" tribes. The main non-Arab groups are the Fur, the Zaghawa and the Masseleit. Smaller ethnic groups include the Tama, Eringaa, Berti, Bergit, Dorok and Tunjur (COIS April 2006 Annex E, also 6.118). The military operation in Darfur started in June 2003 with a "cleansing" of the villages of the ethnic groups in South Darfur, especially the Fur and the Zaghawa tribes. The COIS April 2006 report states:
'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…"'
- The two main rebel groups are the Sudanese Liberation Movement (SLM), which in 2003 reportedly had as many as 2,500 armed troops, and the SJEM or JEM (Sudanese Justice and Equality Movement), estimated around the same time to number several hundred men (COIS April 2006 4.40). However, the conflict in Darfur is not a straight "Arab v African" ethnic one. At 6.121 and 6.123 the COIS April 2006 report states:
"…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".
- We do not attempt at all to summarise the current situation in Darfur here beyond noting that the conflict has broadened geographically over time (COIS April 2006 6.118), the rebels operate as mobile guerrilla groups so that the areas they control are not fixed (COIS April 2006 p.151) and, despite the recent peace accord, the situation in that region is still very precarious.
- Despite its growing oil production, Sudan is amongst the least developed countries. The Europa 2005 Survey records that "Sudan is primarily an agricultural and pastoral country, with about 59% of the economically active population engaged in the agricultural sector – the majority in essentially subsistence production" (COIS 2006 3.01). We lack details about the specific situation in Sudan's urban areas, but according to the December 2004 UN report, "Africa on the move: an urban crisis in the making", around 72% of people living in urban areas in Africa live in slums. Our determination deals separately below with health care provision, but it can be summarised as being generally at a very low level. The Human Development Index for 2005 has Sudan ranked 141st (out of 177 countries).
- The various armed conflicts which have taken place in Sudan in the past 30 years have caused the displacement of millions of people, some externally, and some internally. As regards those who have gone to other countries as refugees, the February 2005 IRIN report recorded a UNHCR estimate that 600,000 Sudanese refugees had already returned to Sudan, including over 200,000 non-registered refugees from neighbouring countries, possibly as many as 400,000 IDPs, and that thousands more were expected to return in the following months (COIS April 2006 6.89).
- The number of IDPs in Sudan is said by a number of reports to be more than 6 million: 1.8 million are in Darfur and approximately 2 million in Khartoum (Khartoum`s overall population being 6-7 million). The Sudan Organisation Against Torture (SOAT), in its Annual Report of April 2006 (appellants' bundle, pp. 338-398), puts the estimated population of Khartoum at "approximately eight million people, of these at least a third are IDPs" (p.349). There are said to be another 1.4 million in the South, the rest being in the East and in other areas. Generally speaking all the displacements have been inter-linked with resource issues, for example to secure oil-production and agricultural land.
- According to COIS, one fifth of the IDPs in Khartoum live in four official camps, and four fifths in up to 30 squatter settlements or areas. That would give a figure for the camps of some 400,000, which accords with the figure given by Ms Maguire. SOAT considers that around 325,000 IDPs reside in official IDP camps and that the "remaining 1.7 million reside in approximately 30 different squatter areas". The IDP camps include Mayo Farms, Jebel Awlia, Wad el Bashier (WeB) and Omdurman es Salaam (OeS) and the squatter areas include Soba Aradi, Haj Yusuf, Jalbabekir, Boraka, Alingas and Salaama. Camps which have been set up in the outskirts of Khartoum, or in adjoining desert areas include Al Fateh 3, Thawra and (from February 2006) Sunduz. Estimates of the number of IDPs in Khartoum from Darfur vary from 8-16% of the total number of IDPs. Although IDPs are disliked by Khartoum residents, they are said to provide all the cheap manual labour force. Whilst estimates of unemployment of IDPs in the official economy are as high as 75%, it is difficult to ascertain to what extent IDPs are able to find some work in the unofficial or black economy. Some light is cast by the Rapid Assessment Report (respondent's bundle page 430) which has this to say about economic activity in the camps and squatter areas:-
"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."
- In considering the legal situation of internally displaced persons in Khartoum it is important to bear in mind the difference between new and old arrivals. Those who arrived before the outbreak of the civil war with the South in 1983, usually gained some rights as so called "squatters". But the majority, who arrived later, lack such rights. Documentation is a huge problem. The December 2005 ACCORD report notes that according to a survey which was carried out by CARE and IOM in 2003, 36% of IDPs in Khartoum had no documents. Only 37% had birth certificates, 15% had certificates of nationality and only 8% had Sudanese ID cards.
- The living and health conditions of IDPs are said by some observers to be appalling. According to the UN assessment conducted in 2005, the housing and nutritional situation of IDPs in Khartoum is worse than in Darfur.
- Since 2003, the demolition of IDP camps and squatters' settlements in Khartoum has progressed and about 250,000 IDPs have been made homeless by the government, sometimes being sent to new sites far away from the city into the desert with no water or any other services. However, there have not been any forced relocations since the May and August 2005 events.
- The background country sources also deal with the evidence relating to medical facilities, but we shall leave that to be addressed later as already indicated.
- In the course of the hearing of the evidence of the expert witnesses, four documents bearing on the issue of risk on return as well as military service were particularly touched upon and therefore it is important that we summarise their contents at this stage.
The 2001 Danish Fact-finding Report
- The first is the 2001 Danish Fact-finding report. What it says in a lengthy Section 2 about conscription has been summarised in the Country Guideline case of BA (military service – no risk) Sudan CG [2006] UKAIT 00006 and is covered in this determination at paragraphs 187-194.
- There followed another detailed section headed 'Conditions of Entry and Exit'. The following subsection is recited here in full:
"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 [24]. 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
- The second document touched on (quite considerably) during the hearing is the December 2005 ACCORD COI report which sets out the opinions of Dr Schodder and Dr Alizadeh. This report deals with a wide range of issues and we have already drawn on other parts of it in the course of our summary immediately above. However, we set out here what is said in it under the heading of "3.10. Exit, Political Activities in Exile and Return". Dr Schodder comments here:
"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."
- In relation to the return of failed asylum seekers Dr Alizedeh states:
"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
- The third document of particular relevance in these cases is the February 2006 UNHCR Position Paper entitled "UNHCRs Position on Sudanese Asylum-Seekers from Darfur". At paragraph 3 it states:
"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."
- The report ends with the following recommendations:
- "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
- Also of relevance is the very recent June 2006 report from the American University in Cairo entitled "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, Sept-Dec 2005." Perhaps the first point by way of clarification about this report is that the reference to "forced removals" is not to refoulement from Egypt to Sudan, but to the forcible eviction by the Egyptian authorities of Sudanese asylum-seekers from a sit-in in Cairo. This report notes at page 7 that in June 2004, as a result of the ceasefire declared earlier that year between the government of Sudan and the Sudan People`s Liberation Army, UNHCR suspended Refugee Status Determination (RSD) procedures for all Sudanese asylum-seekers, regardless of whether they originated from the South, Darfur, or elsewhere. Instead they were issued with a yellow card offering temporary protection. The report sees this as among the factors giving rise to frustrations amongst the Sudanese asylum-seeking community, which eventually led to the September 2005 sit-in. On 17 December UNHCR reached an agreement with leaders of the sit-in offering to revive RSD on a limited basis. However, the sit-in continued and eventually ended in forcible removals resulting in 28 deaths and over 600 detentions. Threats to deport the detainees were retracted pending UNHCR examination of their files and status determination; the report does not mention any deportations having taken place as yet.
- The report also notes that some Sudanese security officials had monitored the sit-ins and entered the prisons where former demonstrators were held. We also have a note dated 19 June from Dr Barbara E. Harrell-Bond OBE, Distinguished Adjunct Professor, Forced Migration and Refugee Studies Programme, American University of Cairo, describing the experiences since 2000 of a refugee legal aid project in Cairo in relation to Darfuri persons seeking asylum: "Without exception, the asylum-seekers that we assist report having to hide in Khartoum, to move around to avoid detection by authorities and waves of arbitrary arrest in the city": She states:
"'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
- It is important when undertaking the task which was envisaged for this panel by the House of Lords in Januzi that we note the fact that since Januzi was decided the Tribunal has issued the new country guidance case of MH (Darfurians: relocation to Khartoum?) Sudan CG UKAIT 00033. The panel in that case was aware that the rehearing of the cases remitted by the House of Lords in Januzi would afford an occasion for a comprehensive review, but considered that it was important to bring the situation up-to-date at the relevant time (3 April 2006). Its conclusions at paragraphs 33-4 state:
"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 opinio