The Upper Tribunal in AAR & AA (Non-Arab Darfuris – return) Sudan [2019] UKUT 282 (IAC) has rejected a Home Office attempt to resume returns of non-Arab Darfuris to Sudan. The tribunal upheld its previous guidance, reaffirming the position that all non-Arab Darfuris are at risk of persecution in Sudan, and internal relocation to Khartoum is not an option. 

The tribunal allowed both appeals on asylum grounds, ignoring previous adverse credibility findings relating to the appellants’ accounts of treatment in Sudan.  For those who don’t ordinarily deal with Sudanese cases, this is because non-Arab Darfuri asylum claims are based solely on ethnicity. Once this ground has been made out, everything else is irrelevant and they should be granted refugee status on that issue alone.

AA upheld – “insufficient evidence” to depart

As covered by Nick Webb in his detailed post on Sudanese asylum claims, the tribunal previously held in AA (Non-Arab Darfuris – relocation) Sudan CG [2009] UKIAT 56 that all non-Arab Darfuris are at risk of persecution anywhere in Sudan. This was followed by MM (Darfuris) Sudan CG [2015] UKUT 10 (IAC), in which it was also considered that the term “Darfuri” related to a person’s ethnicity and not to their geographic location. This means those born outside Darfur can still fall into the “Darfuri” particular social group.

The Home Office has been anxious to overturn this decision and start refusing non-Arab Darfuri asylum claims. 71% of Sudanese asylum claims result in refugee status, putting Sudan second only to Eritrea in terms of grant rates, according to the latest government statistics.

Following a fact-finding mission in August 2018, the Home Office took the view that an improving situation in Sudan (and particularly in Khartoum) meant that AA was no longer good law. However, during the proceedings the situation in Sudan deteriorated, with outbreaks of violence, mass arrests and the deposition of President Omar Al-Bashir. In April 2019 a state of emergency was called and the notorious Janjaweed militia were deployed in the capital to deal with protests.

The tribunal held a case management hearing in July 2019 in which the Home Office requested that proceedings be adjourned until the situation became clearer. The judges rejected this request and held that the evidence lacked the “very strong grounds” necessary to depart from their previous guidance given in AA. 

Business as usual for Sudanese claims

In a similar vein to previous Sudanese country guidance, the tribunal’s reasoning was brief and to the point. A single-paragraph headnote states:

The situation in Sudan remains volatile after civil protests started in late 2018 and the future is unpredictable. There is insufficient evidence currently available to show that the guidance given in AA (non-Arab Darfuris –  relocation) Sudan CG [2009] UKAIT 00056 and MM (Darfuris) Sudan CG [2015] UKUT 10 (IAC) requires revision. Those cases should still be followed.

The decision will come as a relief to both practitioners and human rights workers who remember other Home Office attempts to chip away at strong judicial protections (see for example AS and MOJ). Fortunately, it has not been successful in this case.

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