Immigration and Refugee Law: The Internal Protection Alternative Lecture Notes (ALL) PDF

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LAWS323: Immigration and Refugee Law
The Internal Protection Alternative Lecture Notes All
Lecturer: Natalie Baird...

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The internal protection alternative (audio lectures) Refugee Convention 1951 In the Refugee Convention 1951 under Article One, Part C (5) it states that: "He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality" The refugee claimant is unwilling or unable to avail him or herself of state protection. 

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The Internal Protection Alternative can be a real issue when: The actor or cause of the claimant fear of being persecuted is a non-state actor. E.g. A violent husband. Claimant at risk of being persecuted at the hands of her husband, and she can't access state protection. A possibility is that she might be able to move to a different part of the country and avoid the risk of being persecuted by her husband. This this type of situation we are thining about whether she has an Internal Protection Alternative (IPA). Particularly Large country. E.g. India where there might be an alternative place within the country where the refugee claimant can live. Might be risk of being persecuted in village A or state A, but if they move, the risk of being persecuted may not be present. Underlying notion of the Refugee Convention We are concerned about providing state protection in the home state, or surrogate protection in the state of asylum. The primary recourse should be to one's own state. So if there is a different location within the state where someone can receive state protection then that is to be preferred over refugee status. Conceptualising the IPA: Absence of a well-founded fear Well founded fear approach is said to apply in the following ways: Absence of a well founded fear of prosecution  Because a claimant is able to move to a different part of the country to avoid the risk of being persecuted we say that under the well-founded fear approach they therefore do not have a well founded fear. Subjectively they might be afraid of returning to a different part of the country, but objectively if they are able to get state protection in a different part of the country then they can't be said to have a well founded fear of being persecuted. This is the approach to the IPA. Not “unable” to claim state protection  The justification for withholding refugee status from a person at risk is found in the words "protection of that country." Saying that they don't meet the element of unable to claim protection of that country, because they are able to claim protection from the country, just in a different part of the country. Terminology

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Internal flight alternative, relocation, (used in older cases or when a state is following the well founded fear approach to the IPA). Internal protection alternative: This is preferred because it emphasises that the central core of the inquiry is protection from persecution. E.g. Can the state still provide protection to the individual? Is there an internal protection alternative available in the country? Well-founded/risk approach (Reasonableness approach)(UK)

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The idea behind this approach is that if the claimant is able to relocate to another part of the country, then they cannot be said have a well founded fear. This approach is followed in the United

Kingdom, Australia and the European Union. It is said to comprise of two elements which are mentioned in Januzi. Januzi v Secretary of State for Home Department [2006] 2 AC 426; [2006] 3 All ER 305 (HL), [7] and [47] The first element is discussed by Lord Bingham below. Lord Bingham: [7] The Refugee Convention does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason. Although described by a number of different names this relocation alternative has now been recognised for a number of years, at any rate since publication of paragraph 91 of the United Nations Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees in 1979: “91. The fear of being persecuted need not always extend to the whole territory of the refugee’s country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.” The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country. 

The refugee convention does not expressly address the situation of an internal protection alternative. Where a person has a well founded fear of persecution at Place A where he lived but not at Place B where he might relocate. Lord Hope: [47] "The question where the issue of internal relocation is raised can, then, be defined quite simply. As Linden JA put it in Thirunavukkarasu v Canada (Minister of Employment and Immigration) (1993) 109 DLR (4th) 682, 687, it is whether it would be unduly harsh to expect a claimant who is being persecuted for a Convention reason in one part of his country to move to a less hostile part before seeking refugee status abroad. The words “unduly harsh” set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally, and if he can reach the less hostile part without undue hardship or undue difficulty, it will not be unreasonable to expect him to move there."

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Where someone can be reasonable expected to relocate. Would be it unduly harsh to expect the person to relocate within the country of origin before seeking refugee status overseas? Criticism of the Approach

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Both elements of the well founded risk approach have been criticised. Firstly in terms of the well founded element (person doesn't have a well founded fear of persecution if they can relocate to another part of the country). It is criticised on the basis that it requires the claimant to establish a risk of being persecuted throughout the entire country. This is a fairly onerous burden for claimants. It affectively encourages decision makers to pre-empt the

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analysis of well founded fear in the first region, and allows them to move straight to the question of whether there is an Internal Protection Alternative. Secondly is the critique of the reasonable element (is it reasonable to expect the refugee to relocate, or if it would be unduly harsh to expect them to relocate) The first basis is that there is nothing to be found in the text of Article One A (2) which gives any basis to ask about whether it would be reasonable to expect the person to relocate. The second concern is that is that it is very vague and subjective. What do we mean by reasonableness to relocate?

Reasonableness Inquiry AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] 1 AC 678; [2008] 4 All ER 190; [2007] 3 WLR 832 House of Lords case. It is a continuation of Januzi. Three asylum from Darfur, they fled to the United Kingdom and the issue was whether they had available to them, and Internal Protection Alternative in Cartoon. The court held that there aws a valid IPA. They notes that the issue was whether it was reasonable to expect the claimant to relocate, or if it would be unduly harsh to do so. [42] "The argument of the Secretary of State now is that the United Kingdom will discharge its international obligations to these undoubtedly persecuted people by arranging a return to Sudan to live in squatter areas or the IDP refugee camps in Khartoum (and on that being the effect of return see AIT §229). There was a good deal of evidence before the AIT, most of it not disputed, with regard to conditions in Khartoum for IDPs generally, and in relation to the situation in the camps. In its §126 the AIT recorded that “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”. In this context, AH(Sudan) “some observers” include the experts (acknowledged as such by the AIT in its §93) who reported to the UNHCR ACCORD seminar in Budapest in December 2005; and a report by Dr Walter Kalin, the representative of the SecretaryGeneral of the United Nations for internally displaced persons, in April 2006. Neither of these documents received detailed treatment from the AIT. Miss Giovannetti said that we should respect the assurance of the AIT that it had taken account of all the material before it, and we proceed on that basis. " 

Can see in this quote that some harshness is permitted in the place of relocation. The court was concerned with floodgates. The Convention is not a general humanitarian measure. AA (Uganda) v Secretary of State for the Home Department [2008] EWCA Civ 579 A woman was unable to return to Uganda as it was under control of the Lords Resistance Army. Did she have a Internal Protective Alternative by moving to Kampala? The court said if she moved there she would be without work, accommodation and would probably be forced into prostitution. The asylum and immigration tribunal at first instance held that the situation facing AA was no different to other women living in the slums in Kampala and therefore she would be able to live a relatively normal life judged by the standards of the country. The Court of Appeal overturned this decision, and said that while poverty, homelessness and unemployment did not amount to undue harshness, being forced into prostitution crossed a line.

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In both of these cases, we can see that the issue is around reasonableness measure. It is hard to measure. Protection approach (New Zealand) Focus of inquiry: Is there genuine state protection which can be meaningfully accessed? Refugee Appeal No 71684/99 (29 October 1999) An Indian national of the Sikh faith from the Punjab region. He arrived in NZ without a passport and applied for refugee status. He alleged that he was at risk of being persecuted due to imputed political opinion. He had been harassed by the police, detained for 9-10 days and three beatings during that time. There had been a second period of detention where he was beaten and ended up in hospital for two weeks. In essence it appeared that the police in Punjab believed that the claimant had assisted a Sikh terrorist group even though he hadn't. He moved to another village in the Punjab region where local police made inquiries about him. He got a fake passport and came to New Zealand. Major issues with his

credibility in this case. It was submitted on his behalf that suffering ill treatment by police in his own village, his trust in the govt of India as a whole had been severed. Unreasonable to expect him to find some other place in India to live. Was there an Internal Protection Alternative? Held that he was clearly at risk of being persecuted on imputed, support for Sikh cause. But there was an Internal Protection Alternative, the well-founded fear of persecution was confined to the village he was from. The other village he moved to, the inquiries appeared to be routine rather than persecutionary. Sikh's outside Punjab are not usually exposed to a risk of other forms of serious harm. Therefore the claimant did not meet the requirement that he'd be unable or unwilling to avail himself of the protection of the country. He could access meaningful state protection in other parts of India. He had to go back to India and not live in the Punjab region. It was legitimate for him to do that ahead of New Zealand according him Refugee status. Refugee Appeal 76044 [2008] NZAR 719, [95]-[179] (must-read) Victim of extreme domestic violence who would be the risk of a honour killing if she returned to Turkey. Found to have an imputed political opinion, her act of emancipation when she told the husband she was leave him was the expression of a political opinion. Was an Internal Protection Alternative available? Could she access state protection in Istanbul even though state protection was no available in her home village. It was held that an Internal Protection Alternative was not available in this case. Meaningful state protection could not be accessed in Istanbul. This was in part because the claimants brother lives in Istanbul. What is meaningful domestic protection? A victim can move somewhere else in the country. 

“Reasonableness” of relocation not relevant, Butler v Attorney-General [1999] NZAR 205 (CA) Irish case. The claimant was from Belfast, he had a dual United Kingdom and Irish citizenship. He had been imprisoned in 1973 for five years on account of false imprisonment of someone else and possession of a firearm. In 1991 in prison for 18 months for possession of ammunition and he was yet to serve this sentence. He came to New Zealand with his new partner, his old wife and his two sons. The new partner had a baby when she got to New Zealand. The claimant sought refugee status on two grounds: 1. His alleged fear of being murdered as an alleged informer by the Irish People's Liberal Organisation (IPLO). 2. He had a fear of death and harassment from the Royal Ulster Constabulary. His appeal was dismissed in 1992. They said that he could seek relocation, an Internal Protection Alternative by serving his prison sentence in Belfast and then just relocating elsewhere in the United Kingdom as he had a dual citizen ship. Five years later the High Court heard a Judicial Review Application, it carried on to the Court of Appeal and it was argued he was entitled to the benefit of developments in refugee jurisprudence in the interim. What happened in the interim is that the Refugee Status Appeals Authority had developed its views on Internal Protection Alternative's, and required that at the time that in addition to being able to access meaningful state protection, it was also necessary to inquire whether it was reasonable for the claimant to relocate. The issue for the Court of Appeal was whether the Refugee Status Appeals Authority had committed an error of law by not inquiring specifically as to whether it was reasonable for the claimant to relocate. The Court of Appeal held that no error of law by the authority had arisen. It was not an unlawful error for the authority to fail to address reasonableness or harshness of relocation, the issue was not required to be considered. The reasonableness requirement in any event was not appropriate. It went beyond the scope of the convention. In New Zealand there is no free standing test as to whether it is reasonable or unduly harsh to expect a claimant to relocate. Butler confirmed the New Zealand approach that we are looking for genuine state protection that can be meaningfully accessed. There is no inquiry about the reasonableness of the claimant Meaningful domestic state protection must be:  Accessible, practical, safe, legal 

Absence of risk of persecution for Convention reason in the new location

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Absence of risk of other forms of serious harm. Even if not rising to the level of persecution.

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Provision of basic norms of civil, political and socio-economic rights > some controversy about content. What rights? It is argued that they should be in articles 2-33 of the Refugee Convention (standard for Internal Protection Alternatives) but these rights are for rights of refugees in the country of asylum not of origin. If accessing an Internal Protection Alternative that may not be the appropriate standard.

Refugee Appeal No 76044  Would it be accessible, practical, safe and legal to expect her to move to from her village to Istanbul? Yes.  Absence of risk of persecution for Convention reason in the new location: Would the Internal Protection Alternative avoid the risk of being persecuted? No. She is a 40 year old, Kurdish single woman, divorced. Numerous grounds for potential risk of being persecuted. The threat to her is from the Kurdish community as a whole, so she needs to stay away from them. If she moves to Istanbul, then because of the conflict between Turkish Security Forces and Kurdish Insurgents fighting for independence, many Kurdish people living in Istanbul and her brother had threatened to kill her. It was difficult to identify geographic location anywhere in Turkey where she would be free of a real chance of being killed for her alleged transgression of the honour code.  Absence of risk of other forms of serious harm: Not possible to say in a place like Turkey. She faced possible multiple layers of discrimination (age, divorce, Kurdish, lack of education). Real risk that if she is sent back to Istanbul because of this lower level discrimination she might feel driven to go back and seek the assistance of her family. There may be chance of indirect refoulment. 

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Provision of basic norms of civil, political and socio-economic rights > some controversy about content. She has already failed further up the list. She would probably struggle with finding an adequate standard of living, food, housing, the right to work, realising her rights to physical security. It was concluded here that there was no meaningful Internal Protection Alternative.

Persecution for Convention reason eliminated? No new risks of being persecuted or exposed to other forms of serious harm Standard of protection: basic norms of civil, political and socio-economic rights Current New Zealand Approach

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Is there a real chance of being persecuted if returned to place of origin? If yes, is there a Convention reason for that persecution?

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Persecution for Convention reason eliminated?

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No new risks of being persecuted or exposed to other forms of serious harm Standard of protection: basic norms of civil, political and socio-economic rights

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Can the refugee claimant access meaningful state protection elsewhere? Accessible, practical, safe, legal

Notice Requirement  If the matter of an Internal Protection Alternative is going to be alive issue then the decision maker needs to give notice to the refugee claimant so they have a fir opportunity to respond on the question of Internal Protection Alternative. AF (Sri Lanka) [2011] NZIPT 800031 Critique of NZ approach: Chao Yi “NZ’s approach to the Internal Protection Alternative in Refugee Status Determinations” (2016) 14 NZJPIL 249...