It has taken me a while to get around to posting on the House of Lords judgment in the Sudanese test case, SSHD v AH (Sudan) [2007] UKHL 49. This might be at least partly explained by my not wanting to have to post on it, as if this act of omission would somehow make the problem go away. Unfortunately, the House of Lords has allowed the Home Office’s appeal against the excellent Court of Appeal judgment in the Sudan/Darfur test case. The story was covered fairly extensively in the press when it happened.

The case was about whether it was reasonable to expect nomadic farmers from Darfur to relocate to squalid refugee camps around Khartoum after they have been driven from their homes in a state-sponsored genocidal conflict. For most human beings, this would be what is technically known in legal circles as a no-brainer.

Not so for the President of the Asylum and Immigration Tribunal, nor the House of Lords.

The House of Lords judgment makes quite strange reading. In particular, Lady Hale’s judgment reads very much like she is about to dismiss the Home Office appeal. She is quite critical of errors made by the Tribunal in the original case. However, she eventually ends up toeing the line. The reasoning of the Lords seems to be that the AIT cannot really have meant some of the things that it said, therefore no material error has been committed. The Tribunal is an expert Tribunal and should be allowed to get on with it, basically.

I disagree. I think they meant what they said and the errors look very real to me.

The Lords also rather fudge the issue of the starting point comparator for assessing what is and is not reasonable. The Tribunal suggested it could be the living conditions of the poorest in society. The Court of Appeal suggested that it should be the living conditions in the home area of the individual asylum claimant in question. The Lords say both starting points are relevant. But what if there is an enormous disparity in these starting points? And what happened to assessing claims based on the characteristics of the individual claimant?

It’s not really a very good judgment in my view, in legal terms, never mind the morality of the situation.

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