MH v. Secretary of State for the Home Department

MH Sudan [2006] UKAIT 00033
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Appellant was a Sudanese citizen and a member of the Tama tribe from western Darfur. He entered the United Kingdom on March 6, 2004, potentially as a minor. He sought asylum claiming that his brothers had been killed by Janjaweed militia supported by the Sudanese government and that he would be killed if he returned to Sudan. The Secretary of State rejected his claim for asylum on April 15, 2004 and further issued directions to remove appellant to Sudan. Appellant appealed to the Immigration Judge. He received a favorable ruling by the Immigration Judge on both asylum and human rights grounds, who reasoned that there was a risk to return to his family home as well as the region of Khartoum.
The Secretary of State then appealed reaching the Tribunal court. Upon review, the Tribunal found that it was a material error of law in the Immigration Judge’s reasoning to set aside lack of evidence of persecution in Khartoum by assuming that there were no Darfurians in the Khartoum area and ordered a retrial.

The retrial focused on assessing the risk of return to the Khartoum region. The Tribunal focused on background material that was not available to the Immigration Judge.

The Tribunal rejected both of MM’s appeals on asylum and human rights grounds as there was no risk of return to Khartoum area.

The Tribunal reviewed two previous cases, AE and MM, that were factually similar to the present case. In both cases, the Tribunal had not found a general risk to Darfurians that precluded a return to the Khartoum area. In this case, the Tribunal reviewed additional and more recent information on the risks faced by Darfurians in the Khartoum region, which included reports by Amnesty International, Human Rights Watch, United Nations, among other sources. The Tribunal noted that since the previous cases there had been camps closed, IDPs relocated and incommunicado detentions. However, in reviewing accounts of camp closures and arbitrary arrests, the Tribunal pointed to distinguishing factors. The Tribunal noted that there seemed to be a high risk of persecution to those “who were, or were perceived to be, active sympathisers of armed rebel groups or persons connected with opposition political groups.” Likewise, people besides Darfurians were being relocated by the government. The Tribunal concluded that trends identified from early 2005 were still relevant and while humanitarian concerns persist there wasn’t evidence of a general risk of persecution specifically against Darfurians in the Khartoum area.

 “Two of those (the unemployed man and a person not otherwise identified), were arrested in possession of material which included a poster referring to a symposium on human rights and might therefore be construed as demonstrating sympathy for opposition to the government. This leaves the 15-year old. It is possible that he, too, may have fallen into one or other of the classes of those at risk but the reason was not identified by the informant. Even if he did not, the evidence is too scant to infer that it establishes a wider categorisation based on ethnic lines. Although Amnesty believes that arbitrary arrests occur "on account of their ethnicity" (and we accept that this may well be a factor), the detailed evidence provided in the report re-affirms the risk categorisation that was adopted by the Tribunal in AE. So far as the inference in this report to these cases as being only a 'snapshot', that does not assist us in identifying any evidential basis for the Amnesty International conclusion beyond what is set out there. If there has been some other Amnesty report giving details of other cases in existence at the relevant time, we are not aware of them. Far from expanding the classes of those at risk, we consider that it supports the conclusion that not all Darfurians are at risk. Overall, the risk of routine detention appears to be in respect of only certain categories of Darfurians, not Darfurians generally." Paragraph 24

“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.” Paragraph 33