[2005] UKIAT 4
- Case title: BS (Palestinian, Lebanon, Relocation)
- Appellant name: BS
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Lebanon
- Judges: Mr D K Allen, Mr C P Mather, Mr D W Mayall
- Keywords Palestinian, Lebanon, Relocation
The decision
ar
BS (Palestinian – Lebanon – relocation) Lebanon [2005] UKIAT 00004
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing : 8 November 2004
Date Determination notified:
19/01/2005
Before:
Mr D K Allen (Vice President)
Mr C P Mather (Vice President)
Mr D W Mayall
Secretary of State for the Home Department
APPELLANT
and
RESPONDENT
DETERMINATION AND REASONS
1. The Secretary of State appeals to the Tribunal with permission against the determination of an Adjudicator, C.C. Wright Esq., in which he allowed the appeal of the respondent, hereinafter referred to as the claimant, against the Secretary of State's decision of 22 September 2003, issuing directions for his removal from the United Kingdom and refusing asylum.
2. The hearing before us took place on 8 November 2004. Ms R. Brown appeared on behalf of the Secretary of State and Mr G. Lee for Blavo & Co. solicitors appeared on behalf of the claimant
3. The claimant is a Palestinian from Lebanon. His claim to asylum is summed up in the Adjudicator's lengthy paragraph 4 which sets out the background, including reference to the claimant's educational qualifications and his subsequent membership of Fatah and the six incidents which occurred while he was in the Lebanon which caused him to leave in November 1998 and come to the United Kingdom. The Adjudicator found the claimant to be credible. He considered that the evidence showed that the authorities were unwilling or unable to offer him protection against one Saleh, a person who had attacked him at a wedding in June 1998, Abu Nadil and the Hezbollah organisations, and was also persuaded that it was not possible for the claimant to have relocated to the El-Buss or Rashidieh refugee camps in Tyre where further reconstruction had been prohibited and where he perceived that he would be denied entry.
4. The Adjudicator went on to conclude at paragraph 11 of his determination that the claimant, as the child of professional school teachers and as a man wishing to pursue an academic career and obtain a degree, and having been denied that opportunity in Lebanon and also on account of Palestinian ethnicity, would continue to suffer instances of harassment and discrimination by Abu-Nidal and/or Hezbollah, and was in a situation where third category rights, as identified by Professor Hathaway would be denied particularly as regards legitimate aspirations for academic, economic and social development. He therefore allowed the appeal.
5. The Secretary of State took issue with the Adjudicator's findings, firstly as regards the issue of protection, secondly as regards relocation, and thirdly (the structure of the grounds is somewhat curious) as regards whether or not what had happened to the claimant amounted to persecution. Reference was made in the grounds to the Country Report of April 2002 which was before the Adjudicator.
6. Before us Ms Brown effectively abandoned ground 1, on the basis that no error of law had been shown. As regards ground 3, she read this as challenging paragraph 11 of the determination on the basis that the Adjudicator appeared to conclude that the incidents in question had effectively prevented the claimant from enjoying third category rights rather than the discrete issue of whether denial of such rights was persecutory vis-à-vis Palestinians in Lebanon per se. The Adjudicator therefore had not found that in general for Palestinians in Lebanon their situation was such as to give rise to persecution and/or breach of their Article 3 rights, but it was rather the six incidents which arose from the claimant's involvement which would place him at risk on return.
7. Otherwise, Ms Brown argued that in the alternative she relied on the Country Guidance decision of the Tribunal in KK [2004] UKIAT 00293 and the claim was not made out. With regard to the six incidents, the Adjudicator accepted that the claimant was at risk in his own area but, Ms Brown argued, the Adjudicator was wrong about internal relocation. She accepted that the six incidents accepted by the Adjudicator would be enough to place the claimant at risk of persecution in his specific home area.
8. With regard to ground 2, the Adjudicator had not referred to any objective evidence to support his concerns about the feasibility of relocation. The Country Report had been before him and Ms Brown referred in particular to paragraph 5.72 of that report where it was stated at the outset that Palestinian refugees in Lebanon were free to relocate from one camp to another, though it went on to mention various practical restrictions that might exist in that regard. The matter was referred to in Mr Joffe’s report which was in the bundle at paragraph 8 and again at paragraph 77, but he had cited no source or objective reference to substantiate the contention made, for example, at paragraph 77 that, although the claimant could in theory move to another camp, it would be virtually impossible to survive without relatives given the intensive family-based relationships that tie Palestinian society. Mr Joffe had clearly accepted in KK (paragraph 33 and also at paragraph 86) that Palestinians can relocate and the claimant could therefore return to a different camp.
9. It could be seen from paragraph 5.67 of the April 2002 Country Report that Fatah are currently believed to be in overall control of the largest refugee camp, Ein el-Hilweh, where various groups opposed to Fateh also have a presence. Ms Brown also suggested that linking paragraph 5.62, naming the locations and size of the various camps in the Lebanon with paragraph 5.72, showed that there would be more space available to the claimant in the north and he would be able to relocate there. Even if the camp to which he sought to move was overcrowded it would not be unduly harsh especially given that in the north the camps were less crowded and less expensive than the previous area in which he had lived.
10. The claimant had been involved with Fatah at a relatively low level and had problems with local opposition people and it would be unlikely that if he relocated that others would get to know and in any event he would be protected by being in an essentially Fatah camp. She also referred us to the determination of the Tribunal in MA [2004] UKIAT 00112, in particular paragraphs 14 and 15 on the practicalities of relocation.
11. In his submissions Mr Lee said that he would essentially concentrate on ground 2 in the light of the points made by Ms Brown on the other two grounds. It seemed from the country report that Ein el-Hilweh was in fact in Sidon so although it was Fatah camp it could not be read with paragraph 5.72 since that concerned camps in the south. He would be unlikely to be welcomed to the northern camps as they were essentially run by people who were anti-Fatah.
12. The essence of Mr Lee’s submissions was that there was no error of law by the Adjudicator. He had carefully looked at the objective material and had assessed the submissions on the claimant's own experiences. Mr Lee argued that paragraph 10 concerned the claimant's particular situation and paragraph 11 was separate and dealt more generally with the third category rights dealt with in KK. Relocation had been properly considered at paragraph 10. There was the further point referred to by Mr Joffe in KK concerning problems of freedom of movement. The Adjudicator had been entitled to conclude as he did on the facts of the case. He accepted that he had not referred to Ein el-Hilweh when considering alternative camps and argued that that was not an error of law. There was an overlap between the question of sufficiency of protection and relocation as there was an issue as to whether various camps could offer protection to the claimant. The Tribunal should be slow to say that the camps could offer protection. Likewise the absence of evidence concerning the conditions in Ein el-Hilweh should not lead to the Tribunal to conclude that it was a camp to which the claimant could be returned. He also referred us to paragraph 77 of Mr Joffe’s report. It should be borne in mind that it was not enough to say that physically or theoretically the claimant could relocate but it was a question of whether it would be unduly harsh.
13. Ground 2 essentially concentrated on efforts to relocate but that was not really the issue, the question was the realistic practicalities and the fact was that the claimant did not have to exhaust all the possibilities. The determination could not properly be challenged in this regard. There were clearly problems of freedom of movement adverted to in the grounds of appeal and there was a reference to this at paragraph 84 in KK.
14. There was a final point that as the child of school teachers and being well educated and studying for a business administration degree in the United Kingdom the impact on the claimant of not being able to pursue anything remotely commensurate to his qualifications and ability was discriminatory to the extent of being persecutory.
15. By way of reply Ms Brown made the point that the particular camps named at paragraph 5.72 of the Country Report had been problematic but not specifically Ein el-Hilweh. There was no evidence of problems in the Sidon camps. The Adjudicator had clearly erred in law in not considering relocation to any other than two specific camps that he had named and also had accepted with no reference to the objective evidence what he had said about the practicalities of relocation.
16. We consider that the issues in this case essentially concern relocation. It seems to be accepted on behalf of the Secretary of State that the six events identified by the Adjudicator at paragraph 4 of his determination are such as to evidence a real risk of persecution in his immediate home area. The Adjudicator had relatively little to say about relocation. He accepted that the claimant could not relocate to the El-Buss or Rashideh refugee camps in Tyre, commenting that further reconstruction had been prohibited and the claimant had perceived that he would be denied entry. In our view the Adjudicator's conclusions in this regard contain a clear error of law. There are, after all, as is clear from the Country Report which was before the Adjudicator, twelve refugee camps for Palestinians in Lebanon, and there is no particular reason why he should have restricted his consideration to the two particular camps that he mentioned. When summarising the objective evidence at paragraph 7 he mentioned El-Buss and Rashidieh as being already overcrowded and as being camps where construction work is prohibited. This evidence he would appear to have taken from the Country Report at paragraph 5.72 and there is mention of a third camp, Buri el-Shemali, of which the same is true. However, as Ms Brown pointed out, there is clear reference at paragraph 5.67 of the same report to Ein el-Hilweh as being the largest refugee camp and one of which Fatah was currently believed to be in overall control. It also said that various groups opposed to Fatah have a presence in that camp, but the Adjudicator did not consider the possibility of relocation to that camp at all.
17. In this context we think it is also relevant to express our agreement with the point made by Ms Brown that given the very low level at which the claimant operated we do not consider that on relocation if he did so relocate to Ein el-Hilweh the claimant would face any risk from anyone in that camp opposed to the Fatah movement, bearing in mind the low profile of the work which he had carried out and the extreme unlikelihood that anybody in that camp would have any knowledge of him or his previous activities. We do not therefore consider that the Adjudicator's conclusions are sustainable. It is clear from the country report that Palestinian refugees in Lebanon are free to relocate from one camp to another and only need to inform the UNRWA if they wished to continue to claim UNRWA services in the camp to which they have moved. We note the point made by Mr Joffe in particular at paragraph 77 of his report that the claimant could in theory move to another camp but given the intense family based relationships that tie Palestinians society together it would be virtually impossible for him to survive without relatives. No evidence is provided for this contention, and we do not observe that qualification to have been expressed by Mr Joffe when he gave evidence to the Tribunal in KK, in particular as recorded at paragraph 33 of that determination. As Mr Lee accepted, there is something of a lacuna in the evidence concerning the situation and conditions in the Ein el-Hilweh camp, but the burden of proof is of course on him, and we do not consider that burden has in any way shifted by the fact that this is the Secretary of State’s appeal. It remains the case that we have identified an error of law in the Adjudicator's determination and it is for the claimant to make his case and the absence of evidence in this regard does not assist him. Such evidence as we have, from the country report, indicates as we have said that Fatah are believed to be in overall control of Ein el-Hilweh and that adds significance to the ability of the claimant to relocate to that camp. He is clearly an intelligent and educated man and that is of relevance also with regard to the possibilities for employment that would exist for him in the camp.
18. The conclusion of the Tribunal in KK, to be found in summary as regards the Refugee Convention claim at paragraph 106, is that to the extent there is a discriminatory denial of third category rights in Lebanon to the Palestinians this does not amount to persecution under the Refugee Convention. The Tribunal went on to conclude at paragraph 107 that the Article 3 threshold would not be crossed either. We adopt the reasoning and conclusions of the Tribunal in KK. Accordingly we do not consider that there is force to Mr Lee’s point that the claimant by dint of the contrast between his abilities and qualifications would find himself having to take on employment at a level with such a degree of difference as between what he could do and what he would be allowed to do as to give rise to a breach of his rights such as to be persecutory or in breach of Article 3. We do not consider that the evidence comes anywhere near crossing the threshold in either case for the claimant.
19. In conclusion, therefore, we consider that it has been shown to be the case that there was an error of law in the Adjudicator's determination and we consider that his findings on relocation are not sustainable. He could and should have gone on to consider the possibility of relocation to other camps than the two he considered. His perception that the claimant would be denied entry to El-Buss or Rashidieh is also a matter for which there is no evidential foundation than his own unsubstantiated contention and we consider that this is also a flawed aspect of the determination. We consider that the evidence shows that relocation in this case for the claimant to a different camp, in particular Ein el-Hilweh, would not be unduly harsh, given the fact that it is believed to be overall in the control of Fatah which is the organisation he supports and that as a young man with abilities and qualifications he could relocate there without undue difficulties.
20. We therefore allow the Secretary of State's appeal.
D.K. ALLEN
VICE PRESIDENT
BS (Palestinian – Lebanon – relocation) Lebanon [2005] UKIAT 00004
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing : 8 November 2004
Date Determination notified:
19/01/2005
Before:
Mr D K Allen (Vice President)
Mr C P Mather (Vice President)
Mr D W Mayall
Secretary of State for the Home Department
APPELLANT
and
RESPONDENT
DETERMINATION AND REASONS
1. The Secretary of State appeals to the Tribunal with permission against the determination of an Adjudicator, C.C. Wright Esq., in which he allowed the appeal of the respondent, hereinafter referred to as the claimant, against the Secretary of State's decision of 22 September 2003, issuing directions for his removal from the United Kingdom and refusing asylum.
2. The hearing before us took place on 8 November 2004. Ms R. Brown appeared on behalf of the Secretary of State and Mr G. Lee for Blavo & Co. solicitors appeared on behalf of the claimant
3. The claimant is a Palestinian from Lebanon. His claim to asylum is summed up in the Adjudicator's lengthy paragraph 4 which sets out the background, including reference to the claimant's educational qualifications and his subsequent membership of Fatah and the six incidents which occurred while he was in the Lebanon which caused him to leave in November 1998 and come to the United Kingdom. The Adjudicator found the claimant to be credible. He considered that the evidence showed that the authorities were unwilling or unable to offer him protection against one Saleh, a person who had attacked him at a wedding in June 1998, Abu Nadil and the Hezbollah organisations, and was also persuaded that it was not possible for the claimant to have relocated to the El-Buss or Rashidieh refugee camps in Tyre where further reconstruction had been prohibited and where he perceived that he would be denied entry.
4. The Adjudicator went on to conclude at paragraph 11 of his determination that the claimant, as the child of professional school teachers and as a man wishing to pursue an academic career and obtain a degree, and having been denied that opportunity in Lebanon and also on account of Palestinian ethnicity, would continue to suffer instances of harassment and discrimination by Abu-Nidal and/or Hezbollah, and was in a situation where third category rights, as identified by Professor Hathaway would be denied particularly as regards legitimate aspirations for academic, economic and social development. He therefore allowed the appeal.
5. The Secretary of State took issue with the Adjudicator's findings, firstly as regards the issue of protection, secondly as regards relocation, and thirdly (the structure of the grounds is somewhat curious) as regards whether or not what had happened to the claimant amounted to persecution. Reference was made in the grounds to the Country Report of April 2002 which was before the Adjudicator.
6. Before us Ms Brown effectively abandoned ground 1, on the basis that no error of law had been shown. As regards ground 3, she read this as challenging paragraph 11 of the determination on the basis that the Adjudicator appeared to conclude that the incidents in question had effectively prevented the claimant from enjoying third category rights rather than the discrete issue of whether denial of such rights was persecutory vis-à-vis Palestinians in Lebanon per se. The Adjudicator therefore had not found that in general for Palestinians in Lebanon their situation was such as to give rise to persecution and/or breach of their Article 3 rights, but it was rather the six incidents which arose from the claimant's involvement which would place him at risk on return.
7. Otherwise, Ms Brown argued that in the alternative she relied on the Country Guidance decision of the Tribunal in KK [2004] UKIAT 00293 and the claim was not made out. With regard to the six incidents, the Adjudicator accepted that the claimant was at risk in his own area but, Ms Brown argued, the Adjudicator was wrong about internal relocation. She accepted that the six incidents accepted by the Adjudicator would be enough to place the claimant at risk of persecution in his specific home area.
8. With regard to ground 2, the Adjudicator had not referred to any objective evidence to support his concerns about the feasibility of relocation. The Country Report had been before him and Ms Brown referred in particular to paragraph 5.72 of that report where it was stated at the outset that Palestinian refugees in Lebanon were free to relocate from one camp to another, though it went on to mention various practical restrictions that might exist in that regard. The matter was referred to in Mr Joffe’s report which was in the bundle at paragraph 8 and again at paragraph 77, but he had cited no source or objective reference to substantiate the contention made, for example, at paragraph 77 that, although the claimant could in theory move to another camp, it would be virtually impossible to survive without relatives given the intensive family-based relationships that tie Palestinian society. Mr Joffe had clearly accepted in KK (paragraph 33 and also at paragraph 86) that Palestinians can relocate and the claimant could therefore return to a different camp.
9. It could be seen from paragraph 5.67 of the April 2002 Country Report that Fatah are currently believed to be in overall control of the largest refugee camp, Ein el-Hilweh, where various groups opposed to Fateh also have a presence. Ms Brown also suggested that linking paragraph 5.62, naming the locations and size of the various camps in the Lebanon with paragraph 5.72, showed that there would be more space available to the claimant in the north and he would be able to relocate there. Even if the camp to which he sought to move was overcrowded it would not be unduly harsh especially given that in the north the camps were less crowded and less expensive than the previous area in which he had lived.
10. The claimant had been involved with Fatah at a relatively low level and had problems with local opposition people and it would be unlikely that if he relocated that others would get to know and in any event he would be protected by being in an essentially Fatah camp. She also referred us to the determination of the Tribunal in MA [2004] UKIAT 00112, in particular paragraphs 14 and 15 on the practicalities of relocation.
11. In his submissions Mr Lee said that he would essentially concentrate on ground 2 in the light of the points made by Ms Brown on the other two grounds. It seemed from the country report that Ein el-Hilweh was in fact in Sidon so although it was Fatah camp it could not be read with paragraph 5.72 since that concerned camps in the south. He would be unlikely to be welcomed to the northern camps as they were essentially run by people who were anti-Fatah.
12. The essence of Mr Lee’s submissions was that there was no error of law by the Adjudicator. He had carefully looked at the objective material and had assessed the submissions on the claimant's own experiences. Mr Lee argued that paragraph 10 concerned the claimant's particular situation and paragraph 11 was separate and dealt more generally with the third category rights dealt with in KK. Relocation had been properly considered at paragraph 10. There was the further point referred to by Mr Joffe in KK concerning problems of freedom of movement. The Adjudicator had been entitled to conclude as he did on the facts of the case. He accepted that he had not referred to Ein el-Hilweh when considering alternative camps and argued that that was not an error of law. There was an overlap between the question of sufficiency of protection and relocation as there was an issue as to whether various camps could offer protection to the claimant. The Tribunal should be slow to say that the camps could offer protection. Likewise the absence of evidence concerning the conditions in Ein el-Hilweh should not lead to the Tribunal to conclude that it was a camp to which the claimant could be returned. He also referred us to paragraph 77 of Mr Joffe’s report. It should be borne in mind that it was not enough to say that physically or theoretically the claimant could relocate but it was a question of whether it would be unduly harsh.
13. Ground 2 essentially concentrated on efforts to relocate but that was not really the issue, the question was the realistic practicalities and the fact was that the claimant did not have to exhaust all the possibilities. The determination could not properly be challenged in this regard. There were clearly problems of freedom of movement adverted to in the grounds of appeal and there was a reference to this at paragraph 84 in KK.
14. There was a final point that as the child of school teachers and being well educated and studying for a business administration degree in the United Kingdom the impact on the claimant of not being able to pursue anything remotely commensurate to his qualifications and ability was discriminatory to the extent of being persecutory.
15. By way of reply Ms Brown made the point that the particular camps named at paragraph 5.72 of the Country Report had been problematic but not specifically Ein el-Hilweh. There was no evidence of problems in the Sidon camps. The Adjudicator had clearly erred in law in not considering relocation to any other than two specific camps that he had named and also had accepted with no reference to the objective evidence what he had said about the practicalities of relocation.
16. We consider that the issues in this case essentially concern relocation. It seems to be accepted on behalf of the Secretary of State that the six events identified by the Adjudicator at paragraph 4 of his determination are such as to evidence a real risk of persecution in his immediate home area. The Adjudicator had relatively little to say about relocation. He accepted that the claimant could not relocate to the El-Buss or Rashideh refugee camps in Tyre, commenting that further reconstruction had been prohibited and the claimant had perceived that he would be denied entry. In our view the Adjudicator's conclusions in this regard contain a clear error of law. There are, after all, as is clear from the Country Report which was before the Adjudicator, twelve refugee camps for Palestinians in Lebanon, and there is no particular reason why he should have restricted his consideration to the two particular camps that he mentioned. When summarising the objective evidence at paragraph 7 he mentioned El-Buss and Rashidieh as being already overcrowded and as being camps where construction work is prohibited. This evidence he would appear to have taken from the Country Report at paragraph 5.72 and there is mention of a third camp, Buri el-Shemali, of which the same is true. However, as Ms Brown pointed out, there is clear reference at paragraph 5.67 of the same report to Ein el-Hilweh as being the largest refugee camp and one of which Fatah was currently believed to be in overall control. It also said that various groups opposed to Fatah have a presence in that camp, but the Adjudicator did not consider the possibility of relocation to that camp at all.
17. In this context we think it is also relevant to express our agreement with the point made by Ms Brown that given the very low level at which the claimant operated we do not consider that on relocation if he did so relocate to Ein el-Hilweh the claimant would face any risk from anyone in that camp opposed to the Fatah movement, bearing in mind the low profile of the work which he had carried out and the extreme unlikelihood that anybody in that camp would have any knowledge of him or his previous activities. We do not therefore consider that the Adjudicator's conclusions are sustainable. It is clear from the country report that Palestinian refugees in Lebanon are free to relocate from one camp to another and only need to inform the UNRWA if they wished to continue to claim UNRWA services in the camp to which they have moved. We note the point made by Mr Joffe in particular at paragraph 77 of his report that the claimant could in theory move to another camp but given the intense family based relationships that tie Palestinians society together it would be virtually impossible for him to survive without relatives. No evidence is provided for this contention, and we do not observe that qualification to have been expressed by Mr Joffe when he gave evidence to the Tribunal in KK, in particular as recorded at paragraph 33 of that determination. As Mr Lee accepted, there is something of a lacuna in the evidence concerning the situation and conditions in the Ein el-Hilweh camp, but the burden of proof is of course on him, and we do not consider that burden has in any way shifted by the fact that this is the Secretary of State’s appeal. It remains the case that we have identified an error of law in the Adjudicator's determination and it is for the claimant to make his case and the absence of evidence in this regard does not assist him. Such evidence as we have, from the country report, indicates as we have said that Fatah are believed to be in overall control of Ein el-Hilweh and that adds significance to the ability of the claimant to relocate to that camp. He is clearly an intelligent and educated man and that is of relevance also with regard to the possibilities for employment that would exist for him in the camp.
18. The conclusion of the Tribunal in KK, to be found in summary as regards the Refugee Convention claim at paragraph 106, is that to the extent there is a discriminatory denial of third category rights in Lebanon to the Palestinians this does not amount to persecution under the Refugee Convention. The Tribunal went on to conclude at paragraph 107 that the Article 3 threshold would not be crossed either. We adopt the reasoning and conclusions of the Tribunal in KK. Accordingly we do not consider that there is force to Mr Lee’s point that the claimant by dint of the contrast between his abilities and qualifications would find himself having to take on employment at a level with such a degree of difference as between what he could do and what he would be allowed to do as to give rise to a breach of his rights such as to be persecutory or in breach of Article 3. We do not consider that the evidence comes anywhere near crossing the threshold in either case for the claimant.
19. In conclusion, therefore, we consider that it has been shown to be the case that there was an error of law in the Adjudicator's determination and we consider that his findings on relocation are not sustainable. He could and should have gone on to consider the possibility of relocation to other camps than the two he considered. His perception that the claimant would be denied entry to El-Buss or Rashidieh is also a matter for which there is no evidential foundation than his own unsubstantiated contention and we consider that this is also a flawed aspect of the determination. We consider that the evidence shows that relocation in this case for the claimant to a different camp, in particular Ein el-Hilweh, would not be unduly harsh, given the fact that it is believed to be overall in the control of Fatah which is the organisation he supports and that as a young man with abilities and qualifications he could relocate there without undue difficulties.
20. We therefore allow the Secretary of State's appeal.
D.K. ALLEN
VICE PRESIDENT