• In assessing whether an asylum seeker’s fear of persecution is well-founded under the definition of refugee as contained in Article 1A(2) of the 1951 Refugee Convention, many countries take into account whether the applicant can avail him or her self of a safe place in his country of origin (IFA: internal flight alternative). This paper examines the recognition given in international jurisprudence on asylum to the concept of internal flight alternative.

• UNHCR has noted that applications raising the issue of ‘internal flight alternative’ are complex and should not be considered in accelerated asylum procedures.

• James C. Hathaway also upholds the argument that a person is not at risk of persecution if he can "access effective protection" in some part of his state of origin. He argues that the definition of refugee in Article 1A(2) of the 1951 Refugee Convention clearly intended that refugee status was only applicable to those persons whose only recourse to protection from persecution lies at the international level. The asylum seeker must be able to show that he is unable or legitimately unwilling to seek national protection from his home state. According to Hathaway, refugee status is justifiably denied, therefore, where the national government provides a secure alternative home to a person seeking refuge from the "errant" behaviour of regional government forces. In some instances, it is easy to imagine that the reality of central government protection from the persecutory indulges of its regional forces may not meet with expectation.

• In support of his assertion that the drafting history of the Convention and the UNHCR Statute intended to exclude international protection from internally protected persons, Hathaway cites the comments of two delegates made during the debate on the adoption of the 1951 Refugee Convention. The delegate for France stated that "there was no general definition covering [internal] refugees, since any such definition would involve an infringement of national sovereignty." The United States was also of the opinion at the time that the existence of sufficient national protection warranted the denial of refugee status. Mrs. Roosevelt of the United States noted: "…those problems should not be confused with the problem before the General Assembly, namely, the provision of protection for those outside their own countries, who lacked the protection of a Government…".

• Hathaway makes clear that the underlying assumption that refugee status is based on an exilic premise is qualified by the restriction that the national protection sought must be genuinely accessible and meaningful in reality. He enumerates several situations in which internal protection will not be deemed to afford sufficient protection to the individual: (1) where financial, logistical, or other barriers prevent the individual from reaching internal safety; (2) where the quality of life fails to meet the basic norms of civil, political, and socio-economic human rights; and (3) where internal safety is otherwise illusory or unpredictable.

• Randwha v. Minister for Immigration (1994) 52 FCR 437: This case set down the principles involved in the application of the internal flight alternative in Australia:

• It is necessary to establish whether real protection from persecution is available to an asylum seeker within his country. The Court cited Hathaway and Paragraph 91 of the UNHCR Handbook in support of this principle;

• The relocation must be reasonable in all the circumstances. In deciding what considerations should be taken into account on the issue of reasonableness, Black CJ held: "The range of realities that may need to be considered on the issue of reasonableness extend beyond physical or financial barriers preventing an applicant for refugee status from reaching safety." It was not a reality, for example, for an applicant to move to a remote village where he would be separated from his wife and unable to carry out the employment in which he had been engaged for 30 years (see R v. IAT ex parte Jonah [1985] Imm AR 7 in Section 5.17.1.) Nor need the fear of persecution necessarily extend to the whole territory of the country of origin;

• Where relocation is being considered by the Tribunal, the Tribunal must put this possibility and relevant country evidence to the applicant; and

• It is not necessary to establish a well-founded fear of persecution in part of a country before relocation is considered. For instance, in Syan v. RRT and Anor (1995) 61 FCR 284, the Court held that the Tribunal had not erred in considering the issue of an internal flight alternative without having determined whether the applicant had a well-founded fear of persecution based upon a Convention reason. If an internal flight alternative is found to exist for the applicant, therefore, it is not necessary for the Tribunal to determine whether the applicant has a well-founded fear of persecution based on a Convention reason.

Recourse to the Austrian Federal Administrative Court is possible against a denied appeal by the Federal Minister of the Interior. If the Administrative Court finds a violation of procedural law, it remits the case back to the Federal Minister for reconsideration. Decisions by the Administrative Court do not, therefore, consider the merits of the asylum claim itself. It would appear from the cases discussed below that the Administrative Court will refer an applicant’s case back to the Federal Minister where the Federal Minister has wrongly interpreted the facts, has based the possibility of internal flight on suppositions or has failed to take into account all the circumstances of the case. Despite the fact that the Administrative Court does not consider the merits of asylum claims, important conclusions with regard to the internal flight alternative concept can be drawn from its remittal of the claims.

• Case No. 94/19/0280, 24 March 1994: The Administrative Court found that the Federal Minister’s argument that an internal flight alternative existed for the applicant, a practising Catholic from Nigeria, was not "strong enough to draw final conclusions". Moreover, the Court found that the Federal Minister did not give the applicant a proper chance to challenge the internal flight alternative argument with new evidence (a country report). These findings constituted a breach of procedural rules.

• Case No. 94/19/0246, 19 May 1994: The Administrative Court did not agree with the Federal Minister’s argument that an internal flight alternative existed for the applicant, a Christian from Nigeria. The Court found that the Federal Minister had assumed that the applicant had been living in the proposed internal flight alternative before fleeing the country. The fact that the applicant had not lived anywhere but her home town in Nigeria precluded the existence of an internal flight alternative for her.

• Case No. 94/20/0743, 14 March 1995: The Administrative Court found that the Federal Minister’s conclusion that an internal flight alternative existed for the applicant, an Indian national, was erroneous as it was based on suppositions and was not factually proven. The Federal Minister had been unable to verify that the applicant had been seeking refuge in Bajpur (the suggested internal flight alternative) before fleeing the country or that he had been safe from persecution there.

• Case No. 94/20/0857, 26 July 1995: The applicant in this case was a Kurd from Turkey. The Administrative Court found that the Federal Minister did not take into account all the relevant facts in its decision on internal flight alternative, especially the fact that the applicant was a member of a political party.

• Case No. 95/20/0295, 18 April 1996: In a later case involving a Kurdish asylum seeker from Turkey, the Administrative Court found that the Federal Minister’s decision that an internal flight alternative existed for the applicant was flawed as the Federal Minister could not specify an exact location of refuge for the applicant in Turkey.

• Case No. 95/20/0380, 9 May 1996: The Court found no internal flight alternative to exist in Northern Iraq for the applicant, an Iraqi Christian from Baghdad. The Court found that the Federal Minister did not take into account that this part of Iraq was under Kurdish control and that the applicant was a Christian.

• Case No. 95/20/0284, 12 June 1996: The Court ruled that the Federal Minister had been mistaken in concluding that the applicant was not at risk in the "security zone" of Northern Iraq. Only "a better investigation" could properly assess this risk. In addition, the Court found that the Kurdish authorities in Northern Iraq would not be able to protect the applicant against the Iraqi authorities if he were returned there.

• Case No. 95/01/0395, 13 November 1996: The Administrative Court found that the Federal Minister’s decision regarding the availability of an internal flight alternative for a Christian asylum applicant from Nigeria was based on general facts only and was therefore a breach of procedure.

• Case No. 95/20/0606, 20 March 1997: The Administrative Court found that the Federal Minister had not sufficiently explained on what grounds an internal flight alternative existed for the applicant. The Federal Minister had overlooked the fact that the applicant had "spent only one night and one day in Istanbul". The Court found that if the Federal Minister had taken into account all the elements of the applicant’s case, he could have given a "concrete argument about whether and where an internal flight alternative was possible."

• Case No. 95/20/0333, 5 June 1997: The applicant in this case was a Catholic (and former soldier) from Iraq. The Federal Minister had concluded that an internal flight alternative existed for the applicant in Northern Iraq as the applicant had stayed there for a short period of time before fleeing to Austria. In concluding that the Federal Minister had reached this conclusion erroneously, the Court emphasised the point that internal flight alternative decisions should be taken only after a very detailed investigation of the applicant’s circumstances. In this regard, the Federal Minister should have ascertained where and how the applicant had lived in Northern Iraq immediately prior to leaving the country. The Court also found that the Federal Minister had neglected the fact that the applicant was Catholic and that he might not be safe in the Kurdish "security zone".

• Refugee Appeals Board, C.P.R. (French-speaking divisions) 8 November 1990, F015: In this case, the Board held that refugee status could not be refused simply because the applicants, Christians from the South East of Turkey, could have settled in another part of their native country.

• Refugee Appeals Board, V.B.C. (Dutch-speaking divisions), 12 November 1992, W703: In contrast to its 1990 decision, the Board found that Christians displaced from the South East of Turkey and now living in Istanbul were not persecuted for the purposes of the 1951 Refugee Convention solely on the basis of their bad economic situation. The Board held that "every asylum claim should be the object of an individual examination." In this case, therefore, Istanbul was deemed an internal flight alternative.

• Refugee Appeals Board, C.P.R. (French-speaking divisions), 20 February 1992, R668: The Board held that the wife of a Polish Jew, suffering from persecution in her husband’s village, could settle elsewhere in the country. The Board found that big cities offered effective protection from anti-Semitic persecution because of their anonymity. The Board also found dispositive the fact that the applicant herself was not Jewish.

• Brussels Civil Court Revue du droit des étrangers 1991 v. 65 p. 376: The Court overruled a determination by the Minister of Justice to refuse the application for asylum by a Nigerian citizen who claimed (1) that as a member of a Christian sect, he would be sacrificed to a god of the "ADU" religion if he were returned to Nigeria and (2) that he would be arrested by the Nigerian police who had accused him of killing a policeman. The Court held that it was impossible for the applicant to find refuge anywhere in Nigeria and that, as he had proved that there was a serious indication of a threat to his life, he should be allowed to enter Belgium.

• Refugee Appeals Board, C.P.R. (French-speaking divisions), 22 April 1996: The Refugee Appeals Board held that a member of the Assyrian Democratic Organisation should receive the status of refugee since the autonomous Kurdish territory in Iraq was not considered to be a safe haven.

• Canadian law has the consideration of an internal flight alternative as an integral part of the refugee determination process. Several important decisions by the Canadian courts serve to clarify the application of the internal flight alternative concept in the determination of the refugee status of asylum seekers.

• Supreme Court of Canada, Ward v. Canada [1993] 2SCR 689: The Supreme Court held that there were two presumptions in the determination of refugee status. Firstly, there is the presumption that the persecution is likely and the fear well-founded if the fear of persecution is credible and there is an absence of state protection. Secondly, states must be presumed capable of protecting their citizens, except in situations where the state is in a condition of complete breakdown. This presumption can be rebutted by "clear and convincing" evidence of the state’s inability to protect.

• Court of Appeal, Rasaratnam v. Canada [1991] F.C.J. No. 1256, the Court adopted a two pronged test which the Board must satisfy before refusing an application for asylum on the ground that the applicant could avail himself of a viable internal flight alternative:

• On a balance of probabilities there must be no serious possibility of the claimant being persecuted in the part of the country of relocation; and
• Conditions in the part of the country considered as an internal flight alternative must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.

• The conditions in the internal flight area, referred to in the Rasaratnam case, were examined in Thirunavukkarasu v. Canada [1993] FCJ: The Federal Court of Appeal offered the following test: "…the alternative place of safety must be realistically accessible to the claimant. Any barriers to getting there should be reasonably surmountable. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or in staying there…claimants should not be compelled to hide out in an isolated region of their country…But neither is it enough for refugee claimants to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there."

• The requirement that the IFA be "reasonable in all of the circumstances" was the subject of interpretation in Farrah v. Canada [1993] FCJ 1000: The Board had refused refugee status to a Somalian woman on the basis that she could avail herself of an internal flight alternative in the north of the country. The Court criticised this decision, stating that the reasonableness of an alternative must take into account the state of the infrastructure and the economy "as well as the stability or lack thereof of the ‘government’ which had been established there."

• Federal Court Trial Division, Abubakar v. Canada [1993] FCJ 887: The Court held that the fact that the applicant (a Somalian refugee who had moved to Kenya when he was six years old) had never lived in Somalia, that he did not know where his family was, that he did not speak the language and that he had no prospects for residence or employment in Somalia were all factors to be taken into account in assessing the reasonableness of an internal flight alternative for the applicant in that country. As Professor James Hathaway has pointed out, this decision of the Canadian courts "provides a helpful elucidation of the "reasonableness" test, requiring that one take into account ability to assimilate, prior contact, family relationships, language capacity, and ability to become established. Professor Hathaway, however, also pointed out "it is frightening that the Court did not even consider the issue of whether a disputed territory could constitute an internal flight alternative, a consideration which should have occurred prior to the examination of reasonableness."

• Federal Court, Ramachandran v. Canada [1995] FCJ 731: The Court held that the fact that the Board had relied on two previous factual findings that Colombo in Sri Lanka was a reasonable internal flight alternative for Tamils "constitutes a serious error." The Court noted that the Board "must consider all of the circumstances of the applicant in its determination that the IFA is reasonable." This decision by the Court endorsed the previous determination of the Federal Court Trial Division in Pathmakanthan v. Canada [1993] FCJ 1158 when it said that the "reasonableness of the IFA is a question which must be determined independently from the question of the actual availability of the IFA and must take into consideration all of the circumstances of the individual applicant…" In other words, there can no generic determination of reasonableness when the Board considers the circumstances of the particular applicant before it.

• Federal Court, Sinnathamby v. Canada [1993] FCJ 1160: The Court overruled a decision of the Board that a Jaffna Tamil from Sri Lanka was not entitled to refugee status in Canada. The Board concluded that Colombo was a viable internal flight alternative for the applicant because he had lived there without any problem until 1978 and could therefore resume residency there. The Board reached this decision despite evidence that the applicant had been subjected to harassment by the Sri Lankan authorities since his return there in 1992. The Court held that the state of affairs in Colombo seventeen years ago "hardly seems relevant" in assessing whether Colombo was a current viable internal flight alternative for the applicant in 1992.

• The possibility of an internal flight alternative existing in Colombo for Sri Lankan Tamils from Jaffna was again the subject in question in the case of Kulanthavelu v. Canada [1993] FCJ 1273: The Federal Court Trial Division held that the fact that the applicant had friends and relatives in a suitable safe area and the prospect of employment there were "factors which, in the context of all of the evidence as to the circumstances for each particular claimant, go to whether or not it is "objectively reasonable" for the claimant to live in Colombo without fear of persecution." This judicial reasoning contrasts with the evaluation of Colombo as an internal flight alternative by the Federal Court of Appeal in Thirunavukkarasu where the Court held that an internal flight alternative exists "if it is objectively reasonable" for the applicant to live there, even though he had "no friends or relatives there, or that he may not be able to find suitable work there."

• Choker v. Canada [1993] FCJ 807: The applicant, a Shiite Moslem from Lebanon fled his village and claimed refugee status in Canada. He claimed that the Hezbollah militia, which controlled his village, had attempted to harass him into joining the militia. At the time, invading Syrian forces were posted around the village. The Tribunal decided that the applicant was not eligible for refugee status on the ground that he could find refuge elsewhere in Lebanon in an area controlled by Lebanese and Syrian forces. The Court quashed this decision and in doing so, reinforced the notion that the internal flight alternative only applies where the protection sought is from one’s own government and not from the "military force of an invader, especially when it is an invader from whom the applicant fears persecution."

• Federal Court of Appeal Zazali v. Canada [1991] F.C.J. No. 341: The Court held that a Lebanese asylum seeker could not have been expected to seek the protection of the Lebanese government because it was "virtually non-existent" and could not protect the applicant from persecution by the militia. However, in different circumstances, the Court held that internal flight alternatives could be provided not only by effective government but also by an established authority, "acting as a government" in another region. Whilst not perfect alternatives, they could preclude a determination of Convention refugee status.

• Guidelines Issued by the Chairperson Pursuant to Section 65(3) of Immigration Act, Immigration and Refugee Board 7 March 1996: These guidelines consolidate the judicial findings noted in the above cases with regard to the determination of the possibility of an internal flight alternative. In assessing this issue, the Refugee Division must consider the following:

• the state of infrastructure and economy in the IFA region (i.e. destroyed or not), and the stability or instability of the government that is in place there;
• whether or not there would be undue hardship on the claimant, both in reaching the location of the IFA and in establishing residence there; and
• if there is an IFA, the claimant is not Convention refugee.

5. Denmark

• In 1993, the Danish Refugee Appeals Board decided that a security zone existed in Northern Iraq (Kurdistan) which could be considered safe as an internal flight alternative. The Board, therefore, rejected asylum applications brought by Iraqi citizens if they originated from Kurdistan or had lived there for a substantial period of time without any persecution-related problems before leaving Iraq. The conditions the Board took into account in its determination that Kurdistan constituted an internal flight alternative included the asylum seeker’s connections to Kurdistan and the existence of a social network there. In the autumn of 1996, however, the Board decided that due to the general situation in Kurdistan, it could no longer be considered a safe security zone. The Board does not, therefore, consider that the internal flight alternative concept should be applied in the case of Iraqi asylum applicants at present.

• With regard to asylum claims by Tamils from Sri Lanka, the Board has held that even though the applicant had a well-founded fear of persecution by the guerrilla organisation (LTTE), he did not fear persecution from the Sri Lankan authorities. The applicant could therefore seek protection in regions of Sri Lanka that were controlled by the government. In some of these cases, and in conflict with its present application of the internal flight alternative with regard to Iraqi citizens, the Board refused to grant asylum despite the lack of connections or social network in the area controlled by the Sri Lankan government: R.A.B., 14 October 1994, No.21-1279.

• In late 1996, the Refugee Board began to apply the internal flight alternative concept to asylum applicants originating from so-called "minority areas" in Bosnia-Herzegovina (i.e. areas where the applicant would not belong to the dominant ethnic group). As a consequence, many applicants, typically Muslims or Croats from Serb controlled areas, have been denied asylum on the grounds that they can safely return to the areas controlled by the Muslim-Croat Federation. The Board has taken this step in full awareness of the UNHCR recommendation not to apply the internal flight alternative in such cases. The continued availability of temporary protection to those denied asylum has obviously made such decisions less controversial than they might otherwise have been. The Board has thus left the question of the long term fate of such applicants to be determined as a question of policy rather than of asylum law. The authorities have not yet signalled a definite intention to begin returning Bosnians from minority areas. Like all rejected Bosnian asylum seekers, they continue for the moment to benefit from temporary protection. Whilst the overall practice of the Board in these cases has been characterised by inconsistency, the Board’s initial practice has shown a willingness to consider the question of "reasonableness", particularly in relation to socio-economic factors, in deciding whether an internal flight alternative is appropriate. The Board has not generally found, therefore, that an internal flight alternative exists where the applicants could not, by reason of age or infirmity and the lack of a support network in the Federation controlled areas, be expected to build a new life in those areas. In April - May 1997, however, the Board changed direction in its jurisprudential thinking. It is now much less likely to take account of socio-economic factors in deciding whether the application of the internal flight alternative concept is reasonable. A particular area of difficulty concerns Muslims originating from Croat-controlled areas of the Federation and vice versa. Whilst UNHCR has made it clear that its recommendation against return applies to these groups, the Danish authorities have tended to disregard this recommendation and to simply treat the Federation as one area in which both Muslims and Croats are uniformly protected.

5.6. Finland

• Finland has appeared to have made the policy decision that Tamils from Sri Lanka who have supported the LTTE are in need of international protection. For instance, in a decision of 8 March 1996, the Asylum Appeals Board reached the conclusion that a young Tamil asylum seeker from the North of Sri Lanka could not find protection anywhere in Sri Lanka due to the fact that he had been working for the LTTE for years and that he was a young Tamil male. In the more recent case of 19 June 1997, the Appeals Board granted de facto status to a young Tamil woman from Northern Sri Lanka because she was in danger of being harassed by the authorities on account of her connections with the Tamil Tigers. It would appear from an earlier decision reached on 15 January 1996, however, that the fact that an asylum applicant is a young male Tamil is not a sufficient ground per se for granting asylum.

• The Appeals Board has been similarly predisposed to applications from Tamil asylum seekers who fear harassment from both the LTTE and the Sri Lankan authorities. Decision of the Asylum Appeals Board in the Case of X., 27 February 1995: The applicant had been arrested and tortured by the Sri Lankan army in 1989 on suspicion of LTTE membership. In 1990, the LTTE also arrested the applicant suspecting him of being an informer. After his arrest by the LTTE, the applicant was pressured to work for and join the organisation. In granting the applicant a residence permit, the Appeals Board considered that the prevailing human rights situation in Sri Lanka made it impossible for the applicant to return safely to the LTTE controlled area of Jaffna, where he had lived. Furthermore, he could not be expected to seek refuge in Colombo. He had no relatives or other ties there and ran the risk of being subjected to security checks and arrest if he moved there. In reaching this conclusion, the Appeals Board stated: "According to the UNHCR, asylum seekers can safely be returned only to the southern parts of the country if the returnee has lived there for long periods and/or has close relatives there. Those Tamils originating from the north and east who have a well-founded fear of LTTE persecution cannot safely reside in the south either."

• Commission des Recours des Refugies, Halim Jasar, 5 November 1990, CRR No. 105091: This case concerned an application for refugee status by a Yugoslav citizen of Albanian origin who feared persecution on his return to the Kosovo region. The Commission found that the applicant had not shown that he could not avail himself of the protection of the Yugoslavian authorities in the whole of the country if he were returned. Accordingly, his appeal was rejected.

• Commission des Recours des Refugies, Nadia El Kebir, 22 July 1994, CRR: The applicant in this case was an Algerian woman who claimed that she had been persecuted by Islamic contingents in Algeria on account of her professional lifestyle there. The Commission noted that the local authorities had known about the persecutory acts suffered by the applicant but had done nothing to pursue the perpetrators. The Commission found that the circumstances of the applicant’s departure from Algeria had made it impossible for the applicant to find refuge in another part of Algeria. Accordingly, no internal flight alternative existed for the applicant and she was granted refugee status.

• German case-law provides that asylum cannot be granted if an internal flight alternative exists. Federal Constitutional Court, 2 B v. R 403/84 1501/84, EZAR 203 No. 5: The Court set down the principle in German law that an internal flight alternative exists (1) when the person is safe from political persecution in another part of the country and (2) when that part of the country is without other dangers and disadvantages which could amount to political persecution (the two-pronged test). In this case, the Court examined what "dangers and disadvantages" in the alternative location would preclude a finding that an internal flight alternative existed for persons fleeing religious persecution. The Court held that a minimum religious existence should be possible at the alternative location. The Court defined minimum religious existence to mean "the possibility of practising one’s religion alone or in community with others." The Court concluded that the decision of the lower court had not taken into account whether or not Turkish citizens belonging to the Yezidi religious group would be able to practise their religion in Turkish cities [the suggested internal flight alternative] and whether the Turkish state would be able or willing to provide protection against harassment by their Muslim countrymen.

• The ability of Turkish citizens from the Yezidi religion to relocate within Turkey has been considered in a number of other cases. Federal Constitutional Court, UNHCR Ref: CAS/DUE/066: The Court held that there was no internal flight alternative in existence in Turkey for practising Yezidis fleeing religious persecution. By continuing to practise their religion, they would be faced with severe financial hardship. The Court found that the fact that Turkey did not offer sufficient protection to Yezidis meant that their persecution by private Moslems was attributable to the state. In essence, therefore, asylum seekers cannot be expected to compromise their religious beliefs in order to avail themselves of safety.

• Federal Constitutional Court, B v. R 1025/90 InfAuslR 6/91, pp. 198-200 2 B v. R: The two-pronged test referred to above was used by the Court to quash a decision by the lower administrative courts in Germany to refuse asylum to two Afghan citizens with connections to the mujahedeen guerilla fighters. The lower courts had refused their request for asylum on the ground that they could live in parts of Afghanistan which were controlled by resistance movements to avoid government persecution. The Constitutional Court found that the civilian population in those parts of Afghanistan controlled by the resistance movements would be exposed to the violence of a civil war. These parts of Afghanistan did not, therefore, offer an internal flight alternative.

• BVerwG C 45.92, InfAuslR 5/94 p. 201: The dangers and disadvantages that may preclude the existence of an internal flight alternative include not only the general circumstances in the country of origin but also individual circumstances. The Court reiterated its judicial reasoning that an alternative is not present where the asylum seeker would face "threats elsewhere in his country of origin that are equivalent in intensity to those which initially led him to flee." The Court noted that the threats need not be of a political nature, so long as the asylum seeker would be "forced into a precarious position" by avoiding state perpetrated persecution in his region of origin. The individual circumstances that may be taken into account include such factors as the individual’s handicap, old age, or whether the individual has family or friends in the region who can support him. The Court concluded that an internal flight alternative could be precluded on the grounds either that the alternative does not meet with the subsistence needs of the asylum seeker in question or "where there is a concrete danger to life and limb."

• Wurzburg Administrative Court, Ref: W 9 K 92.30416, 15 March 1994: The Court concluded that as at 1992 Bosnian Muslims could not be expected to find protection either in the areas of Bosnia-Herzegovina controlled by the Serbs or the Croats, or in the one area controlled by the Muslims, as a result of the ongoing Serb violence there. The Court held that "an internal flight alternative is not established where asylum-relevant violations remain a real possibility and where the asylum seeker is exposed to additional dangers and prejudices similar to the violations of asylum-relevant rights." It is interesting to note that the Court in this case took into account the opinions of both The Foreign Office and Amnesty International in their "estimate" that there was no internal flight alternative in Bosnia at the time of the asylum seeker’s application in Germany. The Foreign Office and Amnesty International had reached this conclusion on the basis that the administration, economy and supply systems had all collapsed.

• Bavarian Administrative Court, Ref: AN 5 K 89.39099, 9 Jan 1992: The Bavarian Administrative Court has followed a similar rationale when dealing with claims for refugee status from Yugoslav nationals of Albanian origin. The Court reasoned that as Croatia and Slovenia had seceded from Yugoslavia, there was no internal flight alternative available for those persons seeking refuge from the repressive policy by the Serbian government in the Kosovo region.

• Stuttgart Administrative Court, Ref: A 9 K 10452, 12 July 1990: The Court found that there was no internal flight alternative in Yugoslavia in 1988 for a Yugoslav asylum seeker belonging to the Albanian minority. The Court also found that, despite recent political developments in Yugoslavia, the applicant was still unprotected against persecution. Consequently, the applicant had a right to asylum in Germany.

• Bavarian Administrative Court, Ref: AN 12 K 89.39598, 30 May 1990: The Court held that internal flight alternatives do not exist anywhere in Sri Lanka for Tamils because "returnees would have to face serious economic difficulties which were not present in their regions of origin before they fled." It would appear from this case that if an asylum seeker cannot survive economically, asylum may be granted if the other requirements of the Convention are met.

• Bavarian Higher Administrative Court, Ref: Az. 24 BZ 87.30943, 15 Nov 1991: In relation to the availability of an internal flight alternative in Sri Lanka for young male Tamils persecuted in the Sri Lankan army, the Court has held that no internal flight alternative exists where "the applicant would have to face risks that he did not have to face before he left Sri Lanka." By "risks" the Court not only meant "eventual persecution in other parts of Sri Lanka, but also "shortages of housing, and unemployment."

• Federal Constitutional Court, 2 B v. R 525/90 InfAuslR 4/91 pp. 136-140: The Court held that the fact that it was unlikely that a Syrian national, belonging to the Assyrian minority, would be subjected to a wanted notice throughout Syria if he were returned there was insufficient evidence to accept the existence of an internal flight alternative.

• Hessian Higher Administrative Court, Ref: 13 UE 1568/84, 2 May 1990: The Court found that an internal flight alternative was not available to a Lebanese asylum seeker, as Syrian troops, who perceived the applicant to be an opponent of the Syrian ruling Baath party, were in the process of expanding their already extensive control over a large part of Lebanon. Consequently, the Court held that "it was …not certain that the applicant would be safe from persecution by the Syrian military for a considerable period of time."

• Sigmaringen Administrative Court, A 3 K 14668/93 InfAusIR 5/94 pp. 209-210, 17 February 1994: The Administrative Court suspended a deportation order made by the Federal Agency against a Liberian asylum-seeker, holding that there were no internal flight alternatives in the country. In reference to information supplied by the Foreign Secretary, the Court found that in the areas controlled by the National Patriotic Front of Liberia (NPFL) (some 50-60 per cent of the country) "everyone is in danger." It found that the Economic Community of West African State Cease-Fire Monitoring Group (ECOMOG) troops did not protect individuals. The Court concluded that deporting the applicant back to any part of Liberia was not "reasonable" in light of the limited function of the ECOMOG troops in protecting human rights and the failure of the Benin peace treaty.

• There is no available jurisprudence on the applicability of the internal flight alternative in Hungary.

• The Council of State applies the internal flight alternative as a ground for refusing refugee status. Council of State, 28 June 1994: In this case, the applicant had been persecuted in Kosovo after taking part in a pro-independence demonstration. The Council of State refused the applicant’s claim for refugee status because "after he had left Kosovo, he had been living for more than six months in the north of [the former] Yugoslavia without being persecuted or prosecuted." The Council considered that the fact that the applicant had continued living in the country after his participation in the Kosovo independence protest indicated that an internal flight alternative in the country was available to him.

• Case-law from various courts in the Netherlands reveals that the internal flight alternative can be applied as a ground for refusing refugee status. Several cases decided by the Council of State indicate, however, that the possibility of an

• Where persecution is inflicted by non-state agents, the willingness and the ability of the state to provide protection against such persecution must be established in order to determine the applicability of internal flight alternatives. For instance, in RO2.92.3389, 8 November 1994, the Council of State held that there is no internal flight alternative in Sri Lankan government-controlled territories for those persons fleeing persecution from the Tamil Tigers, as "there was no certainty that the Sri Lankan authorities could protect an important political opponent of the Tamil Tigers." More recently, the Court of Zwolle held that even though there were "safe havens" for escaped slaves in some districts of Nouakchott, there was no reason to expect the applicant, a slave, to relocate internally as the authorities were only in a position to protect slaves in part of the country, and not the whole country: AWB 95/3389, 11 March 1997.

• It follows that where an applicant is fleeing persecution sanctioned by a state in control of only 10 per cent of the country, an internal flight alternative will be available to the applicant in those areas controlled by opposition forces: RO2.92.0475, 21 September 1994. Where those opposition forces, however, are also perpetrators of persecution, the applicant cannot be expected to find refuge in the areas controlled by them. For instance in RO.93.3958, 26 March 1997, the Council of State held that it could not apply the internal flight alternative to the applicant’s case because the applicant had been persecuted not only by the state but also by the Kurdistan Workers’ Party (PPK) in South East Turkey. Likewise, in AWB 97/1525, 15 July 1997, the Court of Den Haag held that the applicant could not be expected to return to Sri Lanka to avail himself of state protection there as he had failed to comply with conditions of reporting in the past and had also previously escaped from detention. As the applicant’s fears of detention and torture by the LTTE and the Sri Lankan authorities were "not impossible", he could not be expected to return to Sri Lanka.

• The fact that the applicant has suffered persecution at the hands of state agents does not necessarily mean, however, that the Council of State will always find in the applicant’s favour. For instance, the Council held that further inquiry of possible flight alternatives should be made in the case of an asylum applicant who had quite clearly been the victim of persecution at the hands of the Turkish authorities in the South East of Turkey: ABRvS, 30 October 1995, RO2.93.2197.

• The Council of State has also held that persecution at the hands of "lower authorities" does not preclude the applicability of an internal flight alternative: ABRvS, RO2.92.4410, 6 December 1994. Likewise, the Court of Zwolle recently held that the applicant, a Roma from Slovakia, who had been coerced into dropping two charges of discrimination against the local police, could have asked for protection from "higher authorities." Accordingly, the Court refused the applicant’s request for asylum, concluding that the applicant could find refuge elsewhere in Slovakia: 96/2197, 28 February 1997.

• Generally, the courts do not consider that the general security situation in the internal flight alternative is a determinative factor in the consideration of its availability. However, in AWB 96/1497, 20 January 1997, the Court of Zwolle held that an internal flight alternative was not available to the applicants because the situation in Iraqi Kurdistan was too unstable for them to return. The Court discounted the argument that the applicants had lived there for a long period of time and that it was, therefore, feasible for them to do so again. The Court concluded that the Iraqi authorities retained a certain measure of control over the area and that is was a possibility that they would search for the applicants there in the future.

• Economic and social factors caused by displacement of the applicant are not generally taken into account in the consideration of his/her application for refugee status: Council of State, RV 1978, 30, 19 August 1978. For instance, in F. Doganay v. Staatssecretaris van Justitie, 17 Sep 1981 en B (1980), Council of State Nos. A-2. 0709-A, the Council held that the applicant (a Syrian-Orthodox Christian from Turkey) could relocate in another part of Turkey. The Court was not sympathetic to the applicant’s claim that his resettlement to another part of Turkey would result in a deterioration of his economic and social position. It concluded that the applicant’s youth and Turkish language skills provided him with the ability to relocate anywhere within Turkey.

• In AWB 96/10979, 10 June 1997, however, the Court of Zwolle stated that the "personal circumstances" of the applicant may be of importance in determining the reality of an internal flight alternative. The applicant in this case was a single woman of Krajinean origin. Her father was deceased, her sister and mother were resident in the Netherlands and Germany and the whereabouts of her brother were unknown. Moreover, the situation in Krajina was "unrelentingly poor". In light of these personal circumstances, the Court concluded that it would be a sign of "disproportionate harshness" to send the applicant back to Krajina or another part of Croatia without first conducting an inquiry into the probability of a safe return.

• The Court of Haarlem has recently stated that the government is required to inform the Court of "acceptable" flight alternatives: AWB 96/3936, 20 December 1996. In this case, the Court held that the Secretary of State must provide the Court with information regarding the treatment of Jews in various parts of the Russian Federation so that the "acceptability" of potential flight alternatives could be examined by the Court.

• Likewise, the Court of Zwolle has recently indicated what circumstances will give rise to an obligation on behalf of the Secretary of State to consider the "reasonableness" of internal flight alternatives: AWB 96/9375, 29 May 1997. These circumstances include: systematic discriminatory treatment in a relatively short period of time and a failure by the state to provide adequate protection against such treatment. In another case under its consideration, the Court of Zwolle made clear that an investigation by the Secretary of State into the "reasonableness" of an internal flight alternative cannot be met simply by relying on findings in a report of the Ministry of Foreign Affairs: AWB 97/137, 29 May 1997.

• The Dutch courts have made clear that internal flight alternatives are not available in certain situations. For example, in A.S. v. De Staatssecretaris van Justitie, 2 September 1982, Council of State Nos. A-2.0273-A en B, the Council of State held that Turks of Kurdish origin actively advocating an independent Kurdish state did not have an internal flight alternative. More recently, the Court of Zwolle has ruled that Istanbul cannot be considered an internal flight alternative for Kurds connected to the PKK. The Court reached this decision in the case of AWB 96/7451, 6 December 1996, in light of the fact that a friend of the applicant had been detained by the Turkish authorities simply because he had offered refuge to the applicant.

• In relation to the existence of an internal flight alternative in the case of Sri Lankan Tamil asylum seekers, the Dutch Raad has found that the limited size of Sri Lanka precludes it from offering an internal flight alternative to persecuted Tamils: Murugasu v. De Staatssecretaris van Justitie, 14 September 1988. The Council found dispositive the fact that the Sri Lankan government was not in a position to protect the applicant in any part of the country. In another case involving Sri Lankan Tamil asylum seekers, the Court of Appeal, Amsterdam found that the political and military situation in Sri Lanka, especially the southern part and Colombo, "precludes determining the existence of somewhere to flee to safely within the country": X. v. De Staat der Nederlanden, 25 May 1989.

• Refugee Status Appeals Authority, Refugee Appeal No. 11/91 Re S, 5 Sep 1991: The Refugee Authority cited Hathaway in this case as authority for the proposition that refugee status is not warranted where a national government provides a secure alternative home to those at risk. Relocation will only be feasible where the protection afforded by the state in the relocated area is meaningful and accessible. In determining whether relocation is an available option, all of the circumstances prevailing in the country of origin must be taken into account. Language and employment difficulties are not relevant to the consideration of state protection. In the case before it, the Authority found that the option of internal relocation for the applicant (an Indian Sikh national from the Punjab) was reasonable in light of the fact that his persecutors were non-state agents who were being actively pursued by the authorities and who lacked the resources to track individuals throughout the Punjab. The Authority concluded, therefore, that it would not be unreasonable for the applicant to leave the Punjab, despite the fact that he might face language and employment difficulties.

• Refugee Status Appeals Authority, Refugee Appeal No. 18/92 Re JS, 5 Aug 1992: The applicant in this case feared persecution from the Khalistan Commando Force (KCF) after his father and uncle were killed by terrorists from the organisation. The Authority pointed out that where the individual feared persecution at the hands of private individuals, such as the KCF, and the government in the country of origin was willing and able to provide protection, the individual could not argue that the country of origin was unable to provide effective protection. If the individual did not seek protection of the state authorities, he could not convincingly argue that the state had failed to protect him. The Authority held that relocation was available not only when the individual was able to avoid detection by his persecutors but also when it at least reduces the chance of detection to less than "real chance." Where the applicant has been out of his country of origin for a relatively long period of time (for the duration of the asylum process), relocation would be reasonable since the degree of risk of persecution would have reduced to well below the "real chance" threshold. The Authority also noted that relocation would be reasonable where there was only a regionalised failure to protect. In concluding that Sikhs could settle in different part of the Punjab or in different parts of the state, the Authority dismissed the applicant’s appeal.

• Refugee Status Appeals Authority Refugee Appeal No. 135/92 Re RS, 18 June 1993: This case established that refugee status will be granted to an individual if (1) the individual cannot genuinely access domestic protection that is meaningful and (2) in all the circumstances, it is unreasonable to expect the individual to relocate. On the facts of the case before it, the Authority held that it was unreasonable to expect the applicant to avail himself of the protection of the Indian government because he was a victim of state-sanctioned torture. (It should be noted at this point that the New Zealand courts generally give special recognition to victims of torture and other cruel, inhuman or degrading treatment or punishment.) The Authority warned that considerable caution should be used when carrying out the relocation assessment "as it essentially involves making speculative judgments." Ethnic, religious, cultural and political differences often make the relocation alternative unrealistic. The Authority also held that if there is any doubt as to whether relocation is reasonable, the applicant must receive the benefit of the doubt. The very fact that the relocation alternative is assessed in terms of "reasonableness" means that "an infinite variety of circumstances" will be taken into account. Consequently, most cases will turn on their own particular facts.

• Refugee Status Appeals Authority, Refugee Appeal No. 523/92 Re RS, 17 March 1995: The Authority made clear that the burden of proving that no internal flight alternative exists lies with the asylum seeker. He must adduce clear and convincing evidence of the state’s inability to protect. The Authority rejected the contention that there were practical impediments to the relocation of Punjabi Sikhs, such as ethnicity, linguistic barriers, religious faith, intolerance by Hindus and lack of central government support. What the Authority found dispositive in dismissing the applicant’s appeal in this case was the fact that the campaign of terror in the Punjab was virtually over and that it would not be unreasonable, therefore, for the applicant to return to India. The Authority concluded that the applicant had satisfied both limbs of the relocation test as described in the above case of Refugee Appeal No. 135/92.

13. Portugal

• In reflecting Article 2.1 of Law No. 70/93, which governs the definition of refugee status in Portugal, the concept of the internal flight alternative has not been applied by the Portuguese authorities per se as a ground for refusing refugee status to asylum applicants. In some particular situations, however, the concept has been applied by the authorities in order to "complement" a negative decision. It has been suggested that one of the reasons why the authorities do not use the concept as a sole criterion for refusing refugee status is that, due to the relatively low number of asylum applications in Portugal, the authorities have not, unlike their European counterparts, felt it necessary to implement restrictive and exclusionary measures.

• Due to the fact that an appeal to the Portuguese Administrative Supreme Court against a decision by the Home Office Minister refusing recognition of refugee status does not involve a review of the merits of an asylum application, judicial interpretation of the concept of internal flight alternative is difficult to ascertain in Portugal. What is clear from the few administrative decisions that are available is that, as mentioned above, the internal flight alternative concept is sometimes applied to support a negative decision. For instance, one particular case, decided before the introduction of the 1993 legislation when Law No.38/80 was in force, involved a national from Angola who was seeking asylum on the grounds that he had been persecuted by non-governmental agents. In refusing his request for asylum, the authorities concluded that there were certain regions in Angola to which the applicant could return in order to avoid further persecution. The authorities have also refused to grant humanitarian status to nationals of former Zaire during certain stages of the civil war there on the ground that Kinshasa was considered a "safe area."

• There is no provision regarding the concept of internal flight alternative in the Spanish Asylum Law or the Implementing Regulations. Whilst the Spanish authorities do apply the notion in their consideration of asylum claims, they proceed very carefully before denying refugee status solely on this basis. The fact that an asylum seeker has moved within the territory trying to find a safe area before leaving the country of origin is indicative of the seriousness of the asylum claim. UNHCR plays a prominent consultative role in the determination procedure and its advice is usually followed by the authorities. Case law on this issue is very scarce, for example, Audiencia Nacional, 20 April 1991: The Court considered the claim by a Lebanese national who had suffered persecution by the Syrian secret services. In deference to a report prepared by the Spanish Embassy in Beirut, the Court held that that even though "Lebanon was in a situation of conflict and violence, there were zones of refuge" available elsewhere. The Court noted that "the conflict situation in a country [is distinct] from the personal fear of the asylum-seeker of being persecuted for one of the motives justifying refuge."

• The immigration authorities in Sweden uphold the concept of internal flight alternative by denying refugee status to asylum applicants who can access efficient protection in another part of their country. The concept will not be applied, however, to exclude refugee status to an asylum applicant if "under the circumstances it would not have been reasonable" for the applicant to seek refuge in another part of his/her country.

• Two decisions of the Utlänningsnämnden (Appeal Board) demonstrate the Swedish authorities’ tendency to apply the internal flight alternative as a ground for denying asylum. In a decision given by the Board on 13 December 1993, the Board refused refugee status to a Serbian Muslim from the Sandzak border area between Serbia and Montenegro who was a member of the SDA. In reaching its decision, the Board held that the applicant could avoid persecution perpetrated against Muslims in the northern part Sandzak by seeking refuge in one of the other eleven municipalities in the Sandzak area. In a decision given on 8 December 1993, the Appeal Board refused refugee status to a 16 year old child applicant from Sri Lanka. As a Tamil, the applicant feared persecution from both the government and the LTTE, an organisation he had left. The Appeal Board concluded that the applicant could reside elsewhere in Sri Lanka and cited Colombo as a safe internal flight alternative.

• Like the Appeal Board, the Swedish immigration authorities have also applied the internal flight alternative as a ground for refusing refugee status. In a decision given on 4 November 1993, the authorities held that a family from Eastern Croatia, an area under Serbian control, was not entitled to refugee status because it could relocate to another part of Croatia controlled by the Croatian government where it could live without the risk of persecution. In a more recent decision concerning Bosnia, however, the authorities have held that an internal flight alternative does not exist for those ethnic groups living in areas where they are in the minority: A96/3811/MP-A96/3820MP, 28 November 1996. In this context, it is interesting to note that the UNHCR has recommended that cases involving Bosnian applicants must be considered in light of the principle recognised in the Dayton Peace Accords that applicants be allowed to return to the place of their former habitual residence. Relocation to another part of the country must always be voluntary.

• The internal flight alternative concept has been applied by the Swiss Asylum Appeals Board in several cases involving Turkish minorities seeking asylum in Switzerland. Close scrutiny of these cases reveal that the Swiss authorities will apply the following rationale in their application of the internal flight concept. On a procedural point, it should be noted that the question of internal flight alternative is often brought up at the beginning of the processing procedure, before the examination of the grounds for refugee status.

• The Swiss authorities will grant refugee status to asylum seekers where the feared persecution is country-wide, perpetrated by state agents and the situation is generally "hopeless." An internal flight alternative will only exist if the protection offered by the location of refuge is effective. An internal flight alternative will not be deemed to exist, therefore, where there is even the remotest possibility that the applicant will be forced to return to the original area of persecution. Whilst, however, an asylum applicant will be expected to relocate to another part of the country of origin, despite the inherent difficulties and disadvantages in doing so, inferior living conditions existing at the place of internal refuge will be taken into account when the reasonableness of executing a deportation order is considered.

• Some commentators argue that an internal flight alternative may only exist where this might be "reasonable." Others argue, as mentioned above, that the reasonableness of the internal flight alternative is not part of the refugee determination process but only comes into play when consideration is being given to the reasonableness of the execution of a deportation order.

• Swiss Asylum Appeal Board, ARK (German-speaking division), 96/082: In this case, the Swiss Asylum Appeal Board held that the members of the Syrian-Orthodox minority in Turkey do not have an available internal flight alternative there.

• Swiss Asylum Appeal Board, ARK (German-speaking division), 95/002, Kammer VII, Urteil vom 22 Januar 1996: In this case, the Appeal Board held that a conscientious objector of the Syrian-Orthodox faith could not be expected to relocate to any part of Turkey because the police were looking for him throughout the whole of the country. The same rationale has been applied by the Board in the case of an Alevitic conscientious objector who had a well-founded fear of persecution in his home region of Pazarcik: ARK/96/108 and ARK96/191, Kammer II, Urteil vom 6 August 1996; ähnlich ARK96/256, Kammer II, Urteil vom 28. Oktober 196.

• Swiss Asylum Appeal Board, ARK (German-speaking division), 96/225, Kammer III, Urtiel vom 24 September 1996: This case involved an asylum application by a Kurdish woman from Turkey. The applicant had been brought up in Koeyue where she had looked after her parents for a number of years. In concluding that an internal flight alternative did not exist for the applicant in the west of Turkey, the Board found dispositive the fact that the applicant (a single woman) had no social network or family connections in the west of Turkey and had no command of the Turkish language. Accordingly, the Board found it to be unreasonable to expect the applicant to move there.

• Swiss Asylum Appeal Board, CRA (French-speaking division), 24 June 1994, 2^nd ch., N 185 334: The Swiss Asylum Appeals Board held that Istanbul represented a valid flight alternative for the return of a Kurd with higher secondary education and adequate knowledge of the Turkish language that had already enabled him to live in Istanbul in the past.

• Swiss Asylum Appeal Board, CRA (French-speaking division), 31 January 1994, 2^nd ch., N 222 361: The Board found that an asylum seeker and his family who had only worked on his parents’ farm in Turkey and was illiterate did not have an internal flight alternative elsewhere in Turkey. The Board also found dispositive the fact that the applicant’s Kurdish name might "betray his origins, which could result in persecution by the authorities in other regions of the country."

• Swiss Asylum Appeal Board, CRA (French-speaking division), 6 December 1994, 2^nd ch., N 175 287: The Board held that there was no internal flight alternative for the Yezidis in the entire Turkish territory where, following the emigration of a large part of their population, they no longer had a socio-economic network.

• Swiss Asylum Appeal Board, CRA (French-speaking division), 26 May 1993, 4^th ch., N 249 452: The Board found that Tamils had opportunities for internal refuge in the south of Sri Lanka, especially in the city of Colombo.

• Swiss Asylum Appeal Board, CRA (French-speaking division), 21 April 1993, 4^th ch., N 138 356: There is no possibility of internal flight where the asylum seeker is directly persecuted by the central authorities. The Board recognised the claim to asylum of a member of the Turkish Communist Party/Marxist-Leninist who, according to official information from the Swiss embassy in Ankara, had been labelled an "undesirable person."

• Swiss Asylum Appeal Board, CRA (French-speaking division), JICRA 1993-9, 7 December 1992, JIRCA 1993, No. 9: The Board held that there was no internal flight alternative in Istanbul for two female Syrian Orthodox Christians from the South East of Turkey. The Board found that integration in Istanbul was impossible for the applicants as they did not have relatives living there and did not speak Turkish well. The Board also noted that the Syrian-Orthodox community in Istanbul did not offer an appropriate social network for young women. Accordingly, the Board concluded that the applicants were genuine refugees.

• Committee against Torture, Alan v. Switzerland, CAT/C/16/D/21/1995: The applicant in this case was a Turkish citizen of Kurdish background who was a member of an outlawed Kurdish organisation. He arrived in Switzerland in 1990 where he sought asylum on the ground that he had been tortured by the Turkish authorities. The Swiss authorities denied the applicant asylum. Shortly thereafter, the applicant presented a petition to the Committee, claiming that if he were expelled to Turkey, he would run a serious risk of being treated in a manner inconsistent with Article 3 of the Convention against Torture. Switzerland pointed out to the Committee that one of the reasons why the applicant’s claim for asylum had been denied was that there was a possibility for him "to settle in a part of Turkey where he would not be at risk." Whilst acknowledging that in some areas of Turkey the Kurdish population was vulnerable because of armed conflict between Turkish security forces and guerillas, Switzerland argued that there were areas where the applicant could live without being threatened by the Turkish authorities. In deciding that Switzerland had violated the applicant’s Article 3 right under the Convention against Torture, the Committee disagreed with Switzerland’s contention and concluded that "it is not likely that a ‘safe’ area for him exists in Turkey." The Committee noted that the applicant had already had to leave both his native area and also a further place of refuge to avoid persecution by the Turkish authorities.

• Neither the Immigration Appeal Tribunal nor the law courts have established a definite framework for the analysis of the internal flight alternative. Even the introduction of Paragraph 343 of HC 395 in 1993 has done little to develop a consistent and coherent approach to the issue. As Dr. Hugo Storey states: "What is apparent from the present state of treatment of the IFA at court level is that despite seeing the IFA as an essential element of the Convention scheme, there has been little sign that UK judges have either welcomed or seen the necessity for decision-makers either to analyse it or apply it themselves within a clear or settled framework of analysis."

• Ex parte Jonah, [1985] Imm. AR 7: In this case, the Court of Appeal rejected the possibility of an internal flight alternative for an applicant from Ghana. The adjudicator had found that the applicant would not be at risk if he resided in a remote village. The Court found that the inability to pursue employment as a trade union official which he had carried out for thirty years, as well as the necessity to live apart from his wife and family in the capital and to withdraw to a remote part of the country in order to avoid the attention of the authorities made the alternative unreasonable.

• Yurekli v. Secretary of State for the Home Department, [1991] Imm. A.R. 153: In contrast to ex parte Jonah, the Queen’s Bench Division in this case did not consider that the applicant’s separation from his family and difficulties in obtaining regular employment prevented him from having an internal flight alternative. In reaching this decision, the Court was persuaded by the fact that the applicant had been living away from his family in Istanbul for two years since the alleged persecution in his home village.

• Ex parte Gunes [1991] Imm AR 278: This case gave approval to Paragraph 91 of the UNHCR Handbook as a guide in operating the internal flight alternative test. Applying the reasonability test of that Paragraph, the Court rejected the contention of the applicant that proof of a localised fear of persecution was sufficient to entitle him to refugee status.

• El-Tanoukhi v. Secretary of State for the Home Department [1993] Imm AR 71: The Court emphasised the importance of examining the general situation in a country in analysing an internal flight alternative. Lloyd LJ noted that: "…the Home Secretary is…entitled to take into account conditions in the country as a whole in deciding whether it is safe to return the applicant" to his home country under Article 33 of the 1951 Refugee Convention.

• R v. Secretary of State for the Home Department ex parte Niyaz [1995] FC3 95/74/19/D: The Court emphasised that the fact that a civil war was ongoing in the applicant’s home country did not preclude the existence of an internal flight alternative. In the case before it, the Court held that there was a reasonable guarantee of safety for the applicant (a Sri Lankan Tamil) in the south and the west of Sri Lanka.

• Ex parte Probakaran [1996] Imm AR 603: The Court noted that: "The only relevance of whether there might be a risk of persecution for a Convention reason would be whether that risk established the question of whether it was shown to be unreasonable to require that the asylum seeker go back to the safe part of his country." This statement appears to include the internal flight alternative test as a Convention requirement.

• R v. IAT ex parte Ponnamplam Anandanadarajah 4 March 1996: In analysing the appropriate test for the determination of the internal flight alternative, the Court of Appeal held that the applicant for asylum must prove that it is unreasonable to expect him to live in another part of the country. In its assessment of the reasonableness of returning the asylum seeker to his country of origin, the Tribunal has also said that the adjudicator must have regard to "all the circumstances of the case." (See the Tribunal case of Ashokanathan 13294).

• Lazarevic, Radivojevic, Adan and Nooh v. SSHD, 13 February 1997: In this recent examination of the internal flight alternative, the Court of Appeal held that refugee status could arise under Article 1A(2) of the 1951 Refugee Convention "when there is an overall failure to provide protection at home giving rise to persecution in part of the country and ineffective internal protection from generalised danger in the rest."

• R v. SSHD and IAT ex p. Robinson, 11 July 1997: The applicant in this case was a Sri Lankan Tamil fearing persecution at the hands of the LTTE in areas controlled by them. The issue before the immigration authorities was whether the applicant could "safely return to an area controlled by the Sri Lankan authorities," such as Colombo. Although noting that the applicant had only been in Colombo for a few days before he was arrested and that he had no relatives living there, the Special Adjudicator concluded that the applicant did not have the requisite well-founded fear because he was not at "particular or unusual risk compared with other Tamils in Colombo." The applicant was, therefore, denied asylum. The applicant then applied for leave to move for judicial review, which was granted by the Court of Appeal. In considering the substantive issues of the case, the Court of Appeal examined the components of the internal flight alternative test. The Court held that the primary question for the decision maker when the issue of internal flight alternative arises is: "can the claimant find effective protection in another part of his own territory to which he may reasonably be expected to move?" In other words, "would it be unduly harsh to expect this person to move to another less hostile part of the country?" Factors to be taken into account in determining this question include: "(a) the practical accessibility of the ‘safe haven’; (b) whether the claimant would be required to encounter great physical danger in travelling or staying there; (c) whether the quality of protection fails to meet basic norms of civil, political and socio-economic human rights; (d) it would not be enough to say that an applicant did not like the weather in a safe area, or had no friends or relatives there, or would not be able to find suitable work there". In light of these findings, the Court concluded that "it was far from obvious that Colombo was not a safe haven or IFA".

• An attempt to clarify the jurisprudence on internal flight was made by the introduction of Paragraph 343 of HC 395. This rule incorporates the concept of the internal flight alternative as laid out in Paragraph 91 of the UNHCR Handbook. It states:

5.17.3. Interpretation by the Immigration Appeal Tribunal

• The Immigration Appeal Tribunal is the body below the UK courts that establishes precedent on asylum and immigration matters. The ambiguity of Paragraph 343 has inevitably led to the Tribunal rendering decisions which are not always consistent in approach.

• Dupovac (R11846): Some attempt was made by the Immigration Appeal Tribunal to analyse the meaning of the rule as follows: "The Tribunal held that a successful asylum claim required the applicant to establish persecution in all parts of the country to which it was ‘practical’ to return."

• Ashokanathan (13294): More recently, the Tribunal construed Paragraph 343 as reflecting Paragraph 91 of the UNHCR Handbook and legitimising the following approach:

• Is the appellant at risk there for a Convention reason?
• If he is not, is it nevertheless reasonable to return him there

• Sulosan (12543): The Tribunal approached the internal flight alternative test by reference to the New Zealand case of Re RS No. 135/92 referred to above. The test applied by the Refugee Authority in that case was two-fold:

• Can the claimant obtain meaningful protection in the country; and
• Is it reasonable to expect him to relocate?

• Mansoor Ahmed (15596): The Tribunal elaborated on the test laid down for an internal flight alternative in the Court of Appeal case of Robinson. It may be remembered that in Robinson, the Court did not specify whether the "unduly harsh" test should be based on a subjective or objective test. In the case before it, the Tribunal cited the New Zealand case of Re RS 523/92 (see section 5.12. for the facts of this case) as authority for the proposition that the personal circumstances of the applicant should be taken into account:

• European Court of Human Rights, Chahal v. United Kingdom, Case No. 70/1995/576/662, 15 November 1996: UK jurisprudence on the internal flight alternative is most likely to change in light of this European Court judgment. The applicant was a Sikh militant who had become involved in the Sikh separatist movement in the Punjab. One fundamental issue before the Court was whether the applicant had an internal flight alternative elsewhere in India. The Court examined a wealth of evidence before it suggesting that the authorities of the state, in this case the Indian police force and security forces, would not be able to protect the civil and political rights of the applicant if he returned there. The Court especially noted that the UK Immigration Appeal Board in Charan Singh Gill v. Secretary of State for the Home Department (11748) had granted asylum to a Punjabi Sikh citizen on the basis that no internal flight alternative existed for the applicant anywhere in India. Accordingly, the Court found that the applicant could not avoid a real risk of torture or inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights by relocating to another part of India. In light of the Court’s judgment in this case, the UK approach to the internal flight alternative is bound to become human rights interlinked.

• There is some debate as to whether a judicial decision maker has a duty to apply the internal flight alternative test, even when it has not been raised previously during the asylum process. Dr. Storey points out that: "If the IFA test is indeed an integral part of the Convention definition of refugee, then a duty to apply it may be seen to arise, quite independently of whether such a duty exists under UK immigration law or national administrative law generally." The Tribunal in the case of Sulosan said that it would not be "necessarily unfair for an adjudicator to deal with such matters as internal relocation for the very first time before him provided the Appellant has had a real opportunity to address the Adjudicator and bring evidence on the matter before him."

In assessing the risk of persecution, the authorities will have regard to the possibility of evading persecution by moving to another part of the country.

• United States Court of Appeals, Third Circuit, Etugh v. United States Immigration and Naturalisation Service 921 F, 2d 36 (3^rd Cir. 1990): The applicant in this case appealed against a deportation order after his claim for refugee status was rejected by the Board of Immigration Appeals (BIA). The Court found that the applicant had erred in his application before the BIA by failing to allege that he would be unable to live safely in another part of his country (Nigeria). Failure to satisfy this evidentiary requirement meant that a prima facie case of eligibility for asylum could not be established. As deportation to Nigeria did not require the applicant to return to the local vicinity of his hometown where the purported persecution had taken place, the Court concluded that the applicant could be returned safely to another part of the country.

• Matter of R., 15 Dec 1992, BIA Int. Dec. #3195: The BIA interpreted Paragraph 91 of the UNHCR Handbook as standing for the proposition that "while it is not always necessary to demonstrate a country-wide fear, it is the exception rather than the rule that one can qualify as a refugee without such a showing." The BIA held that the applicant (a Sikh from the Punjab region of India) had not demonstrated country-wide persecution or mistreatment of Sikhs by the central government or other Indian groups. Moreover, whilst the violence in the Punjab was well documented, the BIA found that Sikhs were safe in other parts of India. As there was no evidence that it would be unreasonable to expect the applicant to move elsewhere in his own country, the BIA dismissed the applicant’s appeal.

• Singh v. Ilchert 63 F. 3d 1501 (U.S. App. Cal. 1995): In contrast to the Matter of R. case, the Ninth Circuit held that an applicant for refugee status was not required to establish a country-wide fear of persecution by a national police force. The Court presumed that in a case of persecution by a governmental body, such as the national police force, the government had the ability to persecute the applicant throughout the entire country. In such circumstances, it would be "unreasonable" for the applicant to relocate. The Court found that in the case before it, the applicant would, for the most part, be unable to avoid future persecution by relocating inconspicuously to another region of India because of the manner of his religious dress and inability to speak the language or dialect of another region in India.

• Generally, non-governmental persecution will have territorial restrictions if the non-governmental action and/or the government’s inability to respond adequately are limited to a particular area of the country. Court of Appeals Sotelo-Aquije v. Slattery, 17 F.3d 33 (2^nd Cir. 1994): The BIA rejected the applicant’s claim for asylum, finding that the applicant’s fear of persecution from the Shining Path organisation was limited to his hometown. On appeal, however, the Court of Appeals reversed this finding, holding that documentary material established that the Shining Path had a broad reach in its violent operations. Accordingly, an internal flight alternative did not exist for the applicant in Peru.