Court of Appeal considers standard of proof for internal relocation

A Somali man who is at risk of harm from the Islamist Al-Shabaab group in his home area is not a refugee or entitled to humanitarian protection because he can reasonably relocate to Mogadishu. This is the decision of the Court of Appeal in ASJ (Somalia) v Secretary of State for the Home Department [2025] EWCA Civ 282.

The court said that, when considering the internal relocation test, the Upper Tribunal did not get the standard of proof wrong when it inferred from ASJ’s failure to explain how he funded his travel to the UK that he had access to greater resources than admitted.

A decision maker must take account of all relevant circumstances and decide whether it would be “reasonable” for a person facing risk in their home area to relocate elsewhere in their country, or “unduly harsh” to expect them to do so. When evaluating this, the decision maker is not required to accept everything a person says about internal relocation unless satisfied beyond doubt that their evidence is untrue.

Background

A person who has left his own country but could have relocated to another part of his country where he would not have a well-founded fear of persecution will not qualify as a refugee under Article 1(A)(2) of the Refugee Convention. The same is true in respect of a claim for humanitarian protection. This is set out in domestic law at Section 35 of the Nationality and Borders Act 2022 and paragraph 339O of Part 11 of the immigration rules.

It was accepted that ASJ was at risk from Al-Shabaab in his home area of Barawe. The issue was whether it was reasonable to expect him to relocate to the capital, Mogadishu.  The country guidance cases for Somalia stress the importance of social ties to access overseas remittances and essential resources within Mogadishu.

The Upper Tribunal judge did not accept that ASJ was telling the truth about his support networks. ASJ had left Somalia in his mid-teens in 2014.  Someone had paid for him to travel from Somalia to Sweden and then paid agents on two further occasions in 2018 and 2019 for him to travel between Sweden and the UK.

The resources to which ASJ admitted came from his aunt in Sweden, his uncle in the UK, and the limited financial support to which he was entitled as an asylum seeker. The Upper Tribunal judge found that these could not have financed ASJ’s travel, and therefore “I find that it is reasonably likely that he has a network to identify links with his minority clan in Mogadishu and seek assistance with accommodation.”

The Upper Tribunal also gave weight to other relevant factors, such as ASJ’s resilience and good health, and concluded that he could reasonably relocate to Mogadishu.

ASJ appealed to the Court of Appeal on the sole ground that the Upper Tribunal had applied the wrong standard of proof when it decided that he could relocate.

The judgment

ASJ argued that the finding that it was “reasonably likely” that he had family or a network that could support him in Mogadishu did not entitle the Upper Tribunal to exclude a “reasonable likelihood” that he would not have that support.

ASJ’s argument centred on the lower standard of proof in asylum cases. This sits below the balance of probabilities and is usually expressed as a “reasonable degree of likelihood” that a person will face persecution in their home country.

The Court of Appeal gave guidance on this lower standard of proof in the case of Karanakaran [2000] EWCA Civ 11 saying that a court “must not exclude any matters from its consideration when assessing the future unless it feels it can safely discard them because it has no real doubt that they did not occur.”

ASJ relied on this to argue that the Upper Tribunal applied the wrong standard of proof when stating that it was “reasonably likely” that ASJ had a network that could assist him in Mogadishu. He argued that the lower standard of proof also applies when considering evidence relating to the internal relocation test, so that unless the Upper Tribunal had “no real doubt” that ASJ’s account was untrue, it should have allowed his appeal.

The Court of Appeal rejected ASJ’s arguments. Although the Upper Tribunal judge used the term “reasonably likely” in part of her decision, the Court of Appeal found that she had in fact come to a well-reasoned conclusion that ASJ was not telling the full truth about his circumstances and that “the appellant would have remittances from abroad and some clan support.”

The judges noted that even in the case of Karanakaran on which ASJ relied, the Court of Appeal had distinguished the test for risk of persecution from the internal relocation test. The former applies the lower standard of proof, but the latter requires weighing the cumulative effect of a broad range of considerations, on some of which the judge might be more satisfied of the evidence than on others. It did not require the judge to accept every assertion of the applicant unless the contrary had been proven.

The Court of Appeal also pointed out that in the leading cases on the internal relocation test the House of Lords and Supreme Court had already considered Karanakaran and confirmed different guidance for the internal relocation test.

Comment 

The Home Secretary wanted to argue an additional ground, namely that the question of burden of proof applies only to the issue of whether a person has a well-founded fear of persecution and does not arise at all in relation to internal relocation.

The Court of Appeal did not consider this ground expressly, having already found that there was nothing wrong with the Upper Tribunal’s conclusion that ASJ would have support in Mogadishu. The judges gave their provisional view that it was not likely to be a correct statement of the law to say that questions of the burden of proof are irrelevant to internal relocation, because the issue of relocation only comes into play once the lower threshold for persecution is met.

However, the Court of Appeal stressed that in practice decisions on internal relocation are unlikely to be influenced by arguments about burden of proof. Instead, they directed decision makers back to the task set out by Lord Bingham in Januzi v Secretary of State for the Home Department [2006] UKHL 5 and AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 and by Lord Stephens in SC (Jamaica) v Secretary of State for the Home Department [2022] UKSC 15 and expressly endorsed the following well-known paragraphs:

Paragraph 21 of Januzi:

…The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so. … The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls … All must depend on a fair assessment of the relevant facts.

Paragraph 5 of AH (Sudan):

… It is, or should be, evident that the inquiry must be directed to the situation of the particular applicant, whose age, gender, experience, health, skills and family ties may all be very relevant… The humanitarian object of the Refugee Convention is to secure a reasonable measure of protection for those with a well-founded fear of persecution in their home country or some part of it; it is not to procure a general levelling-up of living standards around the world, desirable though of course that is.

Paragraph 60 of SC (Jamaica):

the stringency of the reasonableness test is not to be underestimated. 

This issue may be revisited in a future decision.

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