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Heard at Field House

[2003] UKIAT 00140 N (Algeria)
On  2 September 2003

Prepared 3 September 2003 

IMMIGRATION APPEAL TRIBUNAL

                                                                             Date Determination notified:

                                                                                          11 November 2003.......

Before:

Mr H J E Latter (Chairman)
Professor D B Casson

Between

APPELLANT

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

RESPONDENT 

Representation
For the appellant:	Mr N Oakeshott of the Refugee Legal Centre
For the respondent:		Mr A Sheikh, Home Office Presenting Officer

DETERMINATION AND REASONS

1.	The appellant, a citizen of Algeria, appeals against the determination of an Adjudicator (Mr A Talbot) who dismissed his appeal against the decision made on 12 November 2000 giving removal directions following the refusal of his claim for asylum.

2.	The appellant claims to have entered the United Kingdom on 6 February 1998 by boat from Calais to Dover allegedly using a French identity card that has since been destroyed.  He claimed asylum on 12 March 1998.  His claim was refused by the Secretary of State for the reasons set out in a letter dated 26 October 2000.  The Adjudicator heard the appeal against this decision on 21 February 2003.  

3.	The Adjudicator summarised the appellant’s written and oral evidence in paragraph 6 of his determination. The appellant is from Algiers and is of Berber ethnicity.  He carried out his military service from 1992 to 1994 and was involved with radio and telecommunications matters.  He asserted that an incident occurred in November 1993 when he was on home leave.  He was approached by two men from the GIA who demanded that he provide them with radio devices from the army as well as weapons and ammunition.  They also asked him to provide them with a map of the base of his army barracks.  He promised to help them although he never in fact provided them with any assistance.  He reported this incident to his army commander and was told that if he saw the men again he should report this to the police.  

4.	After completing his military service the appellant started work at a supermarket in Algiers.  In June 1995 the army barracks where the appellant had been stationed was attacked by terrorists, a number of whom were killed in the course of the attack.  In their possession was found a plan of the army barracks.  In the morning after the attack gendarmes raided the appellant’s home.  He was arrested and detained for about 10 days.  He was questioned about the attack on the barracks and although he denied that he was in any way to blame he was beaten and generally kept in very poor conditions, although he did not sustain any physical injuries.  At the end of this period he was released without charge but warned that he would be questioned again if need arose.  In January 1996 his home was raided again.  He was re-arrested and detained, this time for about two weeks.  He was questioned in connection with a bomb explosion at a bus station near to where he lived.  He was treated badly in detention and accused of being a terrorist.  After being released he was required to report to the police on a fortnightly basis.  When reporting he was insulted and labelled a terrorist by the police.  In August 1997 he became severely depressed and could not bear having to report any more.  He stopped reporting and stayed at a friend’s house.  He then heard that the gendarmes had been round to his house warning that he had to go on reporting to them.  After hearing this, the appellant became terrified and decided to leave Algeria.  If returned to Algeria he fears both the Algerian government and the terrorists.  He also fears that his Berber ethnicity may cause him problems on return.

5.	The Adjudicator has set out his findings in paragraphs 11 – 22 of his determination. The evidence which he accepted is summarised in paragraph 13.  He accepted the appellant’s basic biographical details, including his Berber ethnicity.  Despite some discrepancies in his evidence in relation to dates the Adjudicator accepted that he had carried out military service.  He also accepted that he had been arrested and detained by the Algerian authorities in connection with investigations made by them into terrorist incidents.  He was detained in poor conditions and treated roughly, perhaps including some physical violence.  Having been released without charge he was then subject to reporting conditions and during his regular reporting to the gendarmerie he was treated to verbal abuse.  The Adjudicator further accepted that these experiences had caused considerable distress to the appellant and that he was now extremely anxious about the prospect of returning to Algeria.

6.	However, the Adjudicator took the view that the appellant had exaggerated his account in relation to the authorities’ specific targeting of himself and in connection with events that had taken place when he was engaged in military service. The Adjudicator took the view that there was a major discrepancy about the approach made to him by the two GIA men.  In his initial asylum statement he said that he was approached by two men who identified themselves as members of the GIA and then when asked to describe the two men he told his army commander that they were strangers to him.  In the course of his asylum interview he was specifically asked at question 1 whether he knew these men and he replied that he did not.  At the start of his oral evidence he confirmed the truth of these documents.  In cross-examination when asked how he knew that the two men were from the GIA he answered that he knew one of them as he and the appellant had both been supporters of the FIS and both frequented the same mosque.  The Adjudicator took the view that this discrepancy was significant and cast a major doubt on whether the appellant was specifically targeted by the authorities as opposed to being rounded up in a more generalised investigation into terrorist incidents.  He believed that the latter was the case.  

7.	The Adjudicator went on to point out that there were further discrepancies in the evidence in relation to the period after the appellant had stopped reporting to the gendarmerie and before he left the country.  In his initial asylum statement he had said that after he ceased reporting he went into hiding at the house of a friend who then arranged for his departure.  In his asylum interview he was asked how long he stayed at his friend’s house and he said about 10 days. In the course of his oral evidence he was asked where he was living from the time of his last arrest and detention until he left Algeria and said that he was in hiding at his friend’s.  However, from the sequence and chronology of events as described by him, this must have been for a period of several months and indeed when asked specifically about this issue he said that he had stayed with a friend for nine to ten months.  He also said that whilst living with a friend he had worked in his coffee shop for about three months.  The Adjudicator commented that this hardly accorded with his statement that he was in hiding. These discrepancies went well beyond a confusion over dates and led the Adjudicator to view that he had distorted his account of the true events.

8.	The Adjudicator went on to consider whether there would be a risk to the appellant on return.  In the light of the background evidence the Adjudicator accepted that there were circumstances in which a person in a particular category, such as a known member or sympathiser of the GIA, may have a well-founded fear of persecution on return.  However, the appellant was not in such a category. The authorities had never charged him with any offence. There was no credible evidence that he was of any current interest to the authorities on return. If he was anxious about returning to his home district where he was known he could move to another area.  The Adjudicator commented that he had spent some nine to ten months living in another area of Algiers at his friend’s house and there had been no indication of any difficulties with the authorities during this period.  He was not satisfied that he would be at risk because of his Berber ethnicity for the reasons which he has set out in  paragraph 19 of his determination, nor as a failed asylum seeker:  paragraph 20.  

9.	In his submissions Mr Oakeshott argued that the appeal should be allowed on the basis of the Adjudicator’s findings of fact.  In the alternative, the credibility findings were unsafe and the appeal should be remitted for a fresh hearing.  He submitted that the Adjudicator had accepted that the appellant had been detained on two occasions.  The details of the ill-treatment are set out in the interviews. The appellant described being assaulted and beaten and being put in an underground prison with no light, no air and no oxygen like a coffin:  see question 17.  After he was released he had not sought medical attention for his physical condition but for his psychological condition.  When he was arrested on the second occasion he had been treated in the same way.  He had been assaulted and accused:  question 32.  After his release he had to continue to report. This indicated a continuing interest in him by the authorities.  Mr Oakeshott referred the Tribunal to Demirkaya [1999] IMM AR 441 and to the judgments of the ECHR in Pretty (29 April 2002 2346/02) and Tomasi (27/1991).  The appellant had been subjected to treatment contrary to Article 3 and to persecution. There had been no fundamental change of circumstances in Algeria.  In these circumstances the passage of time did not diminish the risk. He referred to the Tribunal determination in Guerroub [2002] UKIAT 04965 where an applicant who was perceived by the Algerian authorities to be connected with the GIA and who had escaped from custody was accepted as being at real risk on return.  

10.	The background evidence confirmed that this remained the position.  Amnesty International continued to have particular concerns about people with real or perceived links with armed groups, about real or perceived opponents of the political system and about human rights activists:  A15.  The US State Department report confirmed that while abuses by the security forces had declined there was continued evidence of extra-judicial killings, torture, beatings and general abuse of detainees, most such cases being committed against suspected members of armed groups in the context of the government’s continued battle with terrorism.  Mr Oakeshott argued that the risk was increased for the appellant by the fact that he would be returned from the United Kingdom, a place regarded as being a hive of GIA activity and by the fact that he was a Berber.  The GIA had many Berber members.                

11.	He argued that the Adjudicator’s findings in rejecting part of the appellant’s account were unsafe.  The Adjudicator had put undue weight on what he saw as a discrepancy, but the interview had to be read as a whole.  The appellant made it clear that one of the people who approached him realised that he was in the army because the guerrilla said he was missing from the mosque for Friday prayers:  question 2.  The appellant would be at risk:  he had been detained on one occasion and released without charge but, nonetheless, he had been arrested on a second occasion and required to report.  The GIA were a continuing threat.  The authorities had been interested in him because of his perceived link with the GIA.  

12.	Mr Sheikh submitted that the Adjudicator had been entitled to conclude that the appellant had been picked up in a general round up.  If he had been suspected of being a member of the GIA he would have been dealt with severely and not released without charge.  On his account the appellant had been able to remain in Algiers for a number of months after he had stopped reporting and indeed had worked at a coffee shop. The Adjudicator’s conclusion was properly sustainable on the evidence.  The appellant was not a member of the GIA.  Even on his own account he said that he had reported the approach to an officer during military service.  Guerroub could properly be distinguished.  In that case the applicant had escaped from custody when being questioned about a connection with the GIA.  He had also evaded military service and a court order had been made against him. In the present case the last detention had been in 1996.  The fact that the appellant was a Berber and would be returned from London would not put him at any additional risk. 

13.	The Tribunal will deal firstly with the submission that even on the Adjudicator’s findings of fact, the appeal should have been allowed.  The Adjudicator accepted the account of being arrested and detained on two occasions and subsequently being required to report.  He described the detention as being in poor conditions and being treated roughly, perhaps including some physical violence.  He accepted that the experience had caused considerable distress to the appellant.  The Tribunal accepts that this treatment did attain a minimum level of severity involving physical and mental suffering amounting to a breach of Article 3.  We agree with Mr Oakeshott’s submission that the fact that the treatment was at the hands of the authorities is a proper fact or to be taken into account and also that the requirements of the investigation and the undeniable difficulties inherent in the fight against those involved in terrorism cannot result in limits being placed on the protection to be afforded in respect of the physical integrity of individuals;  see paragraph 115 of Tomasi.  

14.	However, the issue before the Adjudicator was whether there was a real risk of such treatment being repeated if the appellant now returned to Algeria.  The Tribunal accept that there might be such a risk if the appellant is perceived by the authorities as being connected with the GIA.  The nub of Mr Oakeshott’s argument is that the fact of the detentions and the continued requirement to report, taken with the appellant’s failure to report, indicates that there is a continuing risk in the absence of any significant change in circumstances in Algeria.  There have been change and improvements in the situation in Algeria.  There has been some lessening of the extent of human rights abuses but nonetheless such abuses do continue.  It is confirmed in the April 2003 CIPU report that reported incidents of torture by the security forces are now substantially fewer although victims may hesitate to complain for fear of reprisals.  The risk of maltreatment or torture is greatest with people suspected of membership of or sympathy with armed groups:  para 6.14.  A similar view is expressed by Amnesty and also by the US State Department.

15.	It is argued that in the light of Demirkaya commonsense indicates that there is a continuing risk.  The facts in Demirkaya were very different from the present appeal.  It is authority for the proposition that treatment received in the home state prior to departure is an indicator of the fate that may await an applicant upon return.  In Demirkaya the appellant had been the subject of what was described as life-threatening ill treatment of a particularly horrifying kind in the months before he escaped Turkey. The Tribunal had erred by not referring to these experiences when assessing the risk on return. Unless there had been a major change of circumstances making prospective persecution unlikely, past experience under a particular regime should be considered probative of future risk.  

16.	The Tribunal were also referred to Guerroub.  That was an appeal by the Secretary of State against an Adjudicator’s determination allowing an appeal. The Tribunal accepted on the facts of that case that the Adjudicator was entitled to conclude that there was a real risk on return.  At paragraph 24 the Tribunal commented that a critical part of the applicant’s evidence which was believed by the Adjudicator was that he had been arrested, detained and ill treated in June 1999 and that he had been accused on that occasion not only of draft evasion but of involvement in both the FIS and GIA.  During his detention he had been ill treated and had to go to hospital.  He had escaped by walking out and then returning to his relatives.  The Tribunal was satisfied that there was a serious possibility that the applicant would come to the notice of the authorities on return as someone who was perceived to be connected with the GIA and to have escaped from custody whilst being questioned about such connections.  

17.	In paragraph 18 of his determination the Adjudicator accepted that someone who was a known member of sympathiser of the GIA may have a well-founded fear of persecution in Algeria.  In the grounds it is argued that the Adjudicator misdirected himself on this evidence as in fact the CIPU report states that people who are known to be or who are perceived to be active supporters could be at risk.  The Tribunal do not accept that the Adjudicator failed to consider the issue of whether the appellant would be perceived as a supporter of the GIA.  He clearly considered the attitude of the authorities towards the appellant. He commented that the appellant had never been charged with any offence and that there was no credible evidence that he was of any current interest to the authorities on return.  In our judgment this conclusion was properly open to the Adjudicator in the light of his findings of fact.  

18.	There is considerable strength in Mr Sheikh’s submission that if the authorities had any real suspicion of involvement with the GIA the appellant would have been dealt with much more severely and would not have been released. This does not excuse the ill treatment he received but it is of relevance in assessing future risk.  It is also relevant to take into account that this finding is on the basis that the appellant was rounded up in a generalised investigation into terrorist incidents. The Adjudicator clearly rejected the evidence about the appellant being approached by two GIA members.  After the appellant failed to report he continued to live in Algeria for a number of months before leaving for France.  According to his interview the appellant left Algeria on 13 January 1998 and travelled to Marseilles where he remained for about 15 days.  Whilst there he hid from the French authorities and was trying to obtain a false document so that he could travel.  He then moved to Paris where he stayed for 10 days and then a further 10 days at Barbese.  He obtained a false travel document to enable him to travel from France to the United Kingdom, arriving some time in March 1998.  

19.	Looking at the evidence as a whole the Tribunal are satisfied that the Adjudicator was entitled to come to the conclusion that the appellant would not now be regarded by the authorities in Algeria as having any connection with the GIA.  

20.	Mr Oakeshott argued in the alternative, that the Adjudicator’s findings of fact were unsafe and that he was wrong to reject the appellant’s evidence about the contact from the GIA members. The inference is that the appellant was specifically picked up because he had told his army commander that he had been asked to provide a map and following the terrorist attack in June 1995 a plan of the army barracks was found on one of the terrorists.  In our judgment the discrepancies in the evidence as to whether the appellant knew one of the GIA members who allegedly approached him in 1993 was an issue of fact for the Adjudicator to assess on the evidence. It is argued that what the appellant meant was that it was known that he was carrying out his military service because he was missing for a long time from Friday prayers at the mosque.  The proper inferences to be drawn from the evidence were matters for the Adjudicator to assess.  In our view his findings of fact were properly open to him and he has given clear and intelligible reasons for his findings.  He was entitled to take into account not only the discrepancies about whether or not the appellant knew one of the GIA members, but also the discrepancies dealing with more general issues as to what he was doing after he stopped reporting and before he left Algeria.  The Tribunal are satisfied that the Adjudicator’s findings were properly open to him on the evidence for the reasons he gave.

21.	For these reasons, this appeal is dismissed.

H J E Latter
Vice President