AE v Secretary of State for the Home Department [2003] EWCA Civ 1032

Tamil husband and wife from Sri Lanka sought asylum. The husband had a well-founded fear of persecution in Jaffna but not in Colombo. The wife suffered post-traumatic stress disorder from rape. The Court of Appeal clarified the 'unduly harsh' test for internal relocation, holding refugee status depends on whether relocation within the home country is reasonable, not on conditions in the asylum country.

Facts

The appellants, AE and FE, were a married Tamil couple from the Jaffna area of Sri Lanka. The husband had been detained and tortured by the army in 1998 due to his assistance to the LTTE. After his release, he was forced to resume helping the LTTE to prevent his son’s recruitment. The wife was raped by soldiers during a search for her husband. The family fled to Colombo and then to England, where both claimed asylum.

The Secretary of State refused both claims. An adjudicator found the husband had a well-founded fear of persecution in northern Sri Lanka but not in Colombo. The wife had no independent well-founded fear of persecution but suffered post-traumatic stress disorder from the rape. The adjudicator allowed the appeals, finding it ‘unduly harsh’ to expect the family to relocate to Colombo given the wife’s psychiatric condition and concerns about their teenage sons being ’rounded up’.

Issues

Primary Issue

What is the correct approach to the ‘unduly harsh’ test for internal relocation when determining refugee status under the 1951 Refugee Convention?

Secondary Issue

Whether the wife’s psychiatric condition rendered it unduly harsh to expect the family to relocate to Colombo, thereby establishing refugee status.

Judgment

The Court of Appeal dismissed the appeal, holding that the appellants were not entitled to refugee status.

Lord Phillips MR, delivering the judgment of the Court, emphasised the importance of distinguishing between three separate matters:

“It seems to us important that the consideration of immigration applications and appeals should distinguish clearly between (1) the right to refugee status under the Refugee Convention, (2) the right to remain by reason of rights under the Human Rights Convention and (3) considerations which may be relevant to the grant of leave to remain for humanitarian reasons.”

On the correct approach to internal relocation, the Court held:

“So far as the first is concerned, we consider that consideration of the reasonableness of internal relocation should focus on the consequences to the asylum seeker of settling in the place of relocation instead of his previous home. The comparison between the asylum seeker’s situation in this country and what it will be in the place of relocation is not relevant for this purpose, though it may be very relevant when considering the impact of the Human Rights Convention, or the requirements of humanity.”

Regarding the nature of the ‘unduly harsh’ test, the Court explained:

“Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can properly say that a refugee who has fled to another country is ‘outside the country of his nationality by reason of a well-founded fear of persecution’.”

Applying these principles to the facts, the Court concluded:

“On the facts, the wife’s psychiatric condition is not attributable to persecution, or well-founded fear of persecution, on her part nor related to her husband’s well-founded fear of persecution in Jaffna. When considering the question of whether it would be reasonable to expect the husband to live in Colombo, rather than Jaffna, his wife’s condition is a neutral factor. It does not make Colombo unviable or unreasonable as a safe haven.”

Implications

This decision clarified the scope of the internal relocation test following the Human Rights Act 1998. The Court established that when determining refugee status, the test focuses solely on whether relocation within the home country is reasonable compared to remaining in the area of persecution. Factors relating to conditions in the country of asylum are irrelevant to refugee status but may be relevant to Human Rights Act claims or humanitarian considerations.

The judgment rejected the broader approach suggested by UNHCR guidance and some Commonwealth authorities that would accord ‘putative refugee status’ and require the safe haven to meet the standards Member States must provide to refugees. The Court held this would conflate refugee status with other humanitarian protections.

The decision emphasises the need for clear analytical separation between Refugee Convention obligations, Human Rights Convention rights, and discretionary humanitarian considerations in asylum cases.

Verdict: Appeal dismissed. The appellants were not entitled to refugee status as it would not be unduly harsh to expect them to relocate to Colombo. The wife’s psychiatric condition was not attributable to persecution and was a neutral factor when assessing whether Colombo was a viable safe haven.

Source: AE v Secretary of State for the Home Department [2003] EWCA Civ 1032