AA (exclusion clause) Palestine
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 18 May 2005 |
| Neutral Citation | [2005] UKIAT 104 |
| Date | 18 May 2005 |
| Court | Immigration Appeals Tribunal |
[2005] UKIAT 104
The Honourable Mr Justice Ouseley (President)
Ms C Jarvis (Vice President)
His Honour Judge G Risius CB (Vice President)
IMMIGRATION APPEAL TRIBUNAL
AA (Exclusion clause) Palestine
For the Appellant: Mr A Sheikh, Home Office Presenting Officer
For the Respondent: Mr B Lams, instructed by Fitzgrahams Solicitors
This is an appeal against the determination of an Adjudicator, Mr R J Oliver, promulgated on 2 December 2003. He allowed the Claimant's appeal on asylum and human rights grounds against the Secretary of State's decision in July 2003 to refuse asylum and to give removal directions for Palestine. The Secretary of State appeals against that decision. In granting permission to appeal, the Vice President commented that it was “ surprising that exclusion under the Refugee Convention had not been raised”.
The Claimant is a Palestinian originally resident in Gaza, born in 1975, who entered the United Kingdom in 1997 on a student visa. He was given two months' leave to enter and claimed asylum after a month. He was not interviewed until June 2003.
The Claimant's case was that when he was fourteen he had been asked the join the “ Jihad Islamic Movement”, and had no choice but to join. He underwent two years' intensive training in Islamic rules and in understanding those governments, including Israel, which did not adhere to Islamic precepts. When he was sixteen, he was taken for specialist commando-style “ army” training in using guns, and making bombs; he was selected for his fitness and strength.
The Claimant denied that his asylum interview showed these claims to be false: the delay of six years before the interview had affected the detail of his memory; and the interpreter had been unable to translate accurately the technical language which he used to name parts of guns, and her general level of competence was very low because she came from Sudan and spoke a different dialect. The Claimant tried to elaborate on his technical knowledge to the Adjudicator in answer to questions from his own counsel.
From the age of eighteen to twenty, he transported guns as required. But the Israeli inspired crackdown on Hamas in 1995 led to arrests being made by the Palestinian authorities. One of his group was arrested and, under torture, revealed the Claimant's name.
In consequence, when on his way to carry out a suicide bombing mission, the Claimant was arrested at an Israeli checkpoint and thereafter routinely and severely tortured for six months. He gave away the names and details of the activities of those working with him for the Palestinian cause. The torture then stopped but he was kept in detention for a further eighteen months.
An agreement between Israel and the Palestine Authority led to an exchange of prisoners. The Claimant's good conduct led him to be transferred to a Palestinian prison. His time in detention caused him to rethink his ways and to decide to leave the Jihad Islamic Movement. But he knew that because arrests had followed the information which he had given under torture, he would be regarded as a traitor and killed by the JIM.
However, notwithstanding the good conduct which caused his transfer, the Israelis put his name on a list of thirteen men who were dangerous to the peace process, asking that the Palestine Authority expel him or jail him for at least twenty-five years. He accepted the expulsion option from the Palestine Authority; he could not then return. A friend of his father in the Palestine Secret Service arranged for him to receive a student visa from the British authorities in Jerusalem. He was released shortly before the visa was granted, and was given two weeks to leave the country.
He claimed to be in fear of persecution now because between his arrival on 23 July 1997 and the expiry of his visa on 22 September 1997, he had converted from Islam to Christianity. He was baptised on 20 September 1997. He feared execution by Muslim fanatics. His brother and sister had disowned him.
He also claimed that his disclosure under torture of the names of Palestinians involved with the JIM would mean that he would be seen as a traitor. His mother was having a hard time because of it, and he was being sought in Gaza. An imam who had helped to train him and Secret Service men were looking for him.
If he returned he would be detained for at least twenty-five years or worse.
He had had various jobs in the United Kingdom, mainly in private security firms including one involved in aviation. The Adjudicator was not shown the CV supplied, if any, for those posts.
The Secretary of State had wholly rejected the credibility of the Claimant. The Adjudicator found him to be “ transparently honest”, a “ highly trained commando”, detained when he was about to attempt a suicide mission.
The Adjudicator was referred to and accepted background evidence from Human Rights Watch which was said to show that Israeli soldiers repeatedly used indiscriminate and excessive force, “ killing civilians wilfully” and used Palestinian civilians as human shields. The Adjudicator then referred to what he called “ tit for tat” attacks by “ armed Palestinians” on Israeli settlers in the Occupied Territories.
He noted that “ armed Palestinians” killed suspected collaborators with Israel and that there were internal strains in Palestine between various armed groups and with the Palestine Authority. There was no effective justice system. Israelis could enter the Occupied Territories at will to “ retaliate against suicide bombings by Hamas and the JIM on its territories with impunity”.
The Adjudicator accepted that the Claimant would be known in the Gaza, both to the Israelis and had enemies in Arafat's then government. He would be arrested, and worse might follow. The Adjudicator concluded that return in those circumstances would breach Article 3.
The Adjudicator then considered the background evidence about the way in which in Israel and the Occupied Territories, Muslim “ fundamentalists” sought to dominate over Christian Arabs, that Christian evangelising was not permitted in the Occupied Territories, where the Shari'a law against apostasy was enforced extra-judicially should anyone be sufficiently misguided as to convert from Islam. The Adjudicator concluded that the Claimant would be persecuted for his religious beliefs, adding that Article 3 would also be “ encapsulated”.
As for Article 8 and private life, the Claimant had been in the United Kingdom for six years, had established himself with a church, and employment. Had the case been dealt with within a year of his arrival, he would have been granted indefinite leave to remain. But the fact that he had established himself and gained employment meant that it would be disproportionate to remove him.
The Secretary of State appealed on three grounds. First, the failure of the Adjudicator to consider Article 1F of the Refugee Convention in the light of his findings as to the activities of the Claimant; Gurung* [2002] UKIAT 04870, [2003] Imm AR 115, showed that the Adjudicator should have considered the exclusion provisions.
Second, the findings of the Adjudicator in relation to religious persecution were criticised for its acceptance, without adequate reasoning, of the genuineness of the conversion, of there being any risk generated by any preaching activities in the absence of evidence of such a need to preach, and of there being a real risk of persecution simply as a Christian convert. No reasons were given for any apparent acceptance of a risk of persecution by Israelis or the Palestine Authority on account of his ethnicity as a Palestinian.
Third, the proportionality assessment under Article 8 had ignored the adverse significance of the Claimant's activities with the JIM, or Islamic Jihad.
We can deal fairly briefly with most of the issues. As to persecution on religious grounds, the language of the Adjudicator makes it difficult to tell to what extent his findings on this issue have been affected by his conclusions that the Claimant would be persecuted for his imputed political opinion or that he would be treated in a way which breached his rights under Article 3 because of his alleged Islamic Jihad activities, and the information he allegedly gave under torture. If the latter are justified and affected the conclusions on risk of religious persecution, we would regard the conclusions on religion as probably tenable.
Viewed as independent grounds, they are more problematic. Of course, they start from the premise that the Claimant was a credible person. It is not necessary as a matter of law that the Claimant produce supporting evidence of the genuineness of his conversion. There were circumstances present here which could have created real doubt about the conversion's genuineness to many a rational non-sceptical eye: the rapidity of conversion from Islamic radical extremist torture victim to Christian, is not far short of Damascene; its timing is suspiciously fortuitous; there was every opportunity for the successful church to identify itself and attest to the strength of the convert's continuing devotion. However, we cannot overturn that finding. We ourselves would not agree with the assessment of the background evidence by the Adjudicator. The effect of the background evidence does require attention to be placed on the degree of activism likely from an apostate on return, even though it showed that ethnic Christian Arabs are intimidated and harassed in Israel and the Occupied Territories by increasingly domineering and assertive Islamic groups. Harassment and discrimination are in evidence as is the possibility, but no more than that, of severe...
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