AB and Others (Risk- Return – Israel Check Points)
| Jurisdiction | England & Wales |
| Judge | J BARNES,VICE PRESIDENT |
| Judgment Date | 01 February 2005 |
| Neutral Citation | [2005] UKIAT 46 |
| Court | Immigration Appeals Tribunal |
| Date | 01 February 2005 |
[2005] UKIAT 46
IMMIGRATION APPEAL TRIBUNAL
Mr J Barnes - Vice President
Mr L V Waumsley - Vice President
Mr J G Macdonald (First Day Only)
For the First Appellant: Mr B Tattersall of Counsel, instructed by Noden & Company Solicitors
For the Second Appellant: Mr J Middleton of Counsel, instructed by Bolton and District CAB
For the Third Appellant: Mr J Rene of Counsel instructed by MacLaren Britton, Solicitors
For the Respondent: Mr L Parker, Home Office Presenting Officer
AB and others (Risk- Return — Israel Check Points) Palestine
These appeals have been heard jointly because they concern the essential issue of whether there is a real risk of persecution of a returned failed asylum seeker of Palestinian ethnicity from the Occupied Territories at the point of return when he will have to pass through a checkpoint manned by the Israeli Authorities in order to regain the West Bank or the Gaza Strip as the case may be. In the present appeals the first and second Appellants were formerly resident in the West Bank and the third Appellant was formerly resident in the Gaza Strip. The hearing on 6 September concerned only the first and second Appellants. The appeal of the third Appellant was initially listed for hearing before Mr D Allen and Mr Barnes on 23 September 2004. Mr Rene indicated that he wished to call oral expert evidence of Dr Azzam Tamimi and that application was granted. By consent that hearing was adjourned to enable the third Appellant's appeal to be listed for hearing jointly with the appeals of the first and second Appellants on 15 November 2004, the date to which their appeals had been adjourned on 6 September as appears later in this determination. At the hearing of 23 September 2004 the removal directions in the case of the third Appellant were formally amended by Mr Elks, the Presenting Officer, to Gaza in the Occupied Territories.
The first Appellant was born on 18 August 1971 and claims to have entered the United Kingdom clandestinely by lorry on 4 January 2002. He came to the attention of the Asylum Directorate when he applied for asylum on 9 January 2002. Following the submission of a Statement of Evidence Form and an interview with a further written statement, his application was refused by the Secretary of State for the reasons set out in a letter dated 23 May 2003. On 15 August 2003 the Secretary of State issued directions for his removal to the ‘Palestinian authority (West Bank)’ as an illegal entrant after refusal of his asylum application. He appealed against that decision on both asylum and human rights grounds and his appeal was heard on 29 September 2003 by Mr James R Devittie, an Adjudicator, who did not believe his core account although he accepted that he was of Palestinian ethnicity and formerly resident in the West Bank. He therefore dismissed the asylum and human rights claims made by the first Appellant. He then sought and was granted permission to appeal to the Tribunal both against the adverse credibility findings made by the Adjudicator and on the basis that it was arguable that any possible risk to the Claimant, if he were returned via Israel, had not been adequately addressed.
The second Appellant is also of Palestinian ethnicity although he was born in Kuwait where his family had moved but they were forced to leave Kuwait in the aftermath of the first Gulf War in 1991 and then returned to and lived in the West Bank of the Occupied Territories. The second Appellant arrived in the United Kingdom on 12 February 2001 and claimed asylum on arrival. Following an initial interview, the submission of a statement of additional grounds and a further interview at which his passport issued by the Palestinian authority was produced, his application was refused by the Secretary of State for the reasons contained in a letter dated 15 September 2003. On 23 September 2003 the Secretary of State gave notice of his intention to remove him also to ‘the West Bank (Palestine)’ following refusal of leave to enter after refusal of his asylum application. He too appealed against that decision on both asylum and human rights grounds and his appeal was heard on 10 December 2003 by Ms Geraldine McLachlan, an Adjudicator. She found that the Appellant had not been targeted for persecution because of his ethnicity or his religion by the Israeli forces and that he had no political involvement in the West Bank although she accepted that one of his brothers was involved in an anti-Israeli political group there and was proactive in violence against the Israelis. But, the Israeli forces did not hold the Appellant in detention and nor had they subjected other members of the Appellant's family to questions about his brother's activities. There had been a random attack by a Jewish settler some two and a half years prior to his departure but the Adjudicator found this was not a matter in respect of which he had sought protection either from the Palestinian Authorities or the Israeli Authorities and it had played no part in his decision to leave the West Bank. There was no evidence to support a claim that he would be of adverse interest to the Palestinian Authorities or any of the political groups in the West Bank if returned. The Adjudicator found that he had come to the United Kingdom for economic betterment and had had no well-founded fear of persecution. She concluded that he could be returned without risk of persecution either at the point of entry or within the West Bank and dismissed both his asylum and human rights claims.
The second Appellant also sought permission to appeal to the Tribunal which was granted on the ground that the Adjudicator had not properly dealt with the issue of his safety at the point of return. In the case of the second Appellant, therefore, that is the only issue before us.
The third Appellant was born in Gaza in the Occupied Territories on 14 July 1980. He does not know where his mother is or the identity of his father. He was brought up there by Fatima Tissera who decided to go to Egypt when the Appellant was 13 years old and took him with her. After six months or so she said she could no longer afford to support him and since then he has lived variously and unlawfully in a number of European countries, doing odd jobs to support himself. Some six months prior to his arrival in the United Kingdom illegally on 19 December 2000, he had gone to Spain to which he was returned on the same day. The Spanish Authorities, however, refused to accept him back and returned him to the United Kingdom on 23 December 2000 when he applied for asylum. After two interviews in January and June 2001, that application was finally refused by the Secretary of State for the reasons set out in a letter dated 7 November 2003. On 14 November 2003 the Secretary of State issued directions for his removal to ‘Israel’. He appealed against that decision on both asylum and human rights grounds and his appeal was heard on 10 February 2004 by Mr E A W Jones, an Adjudicator. He accepted the Appellant's history but found that he had no well-founded fear of persecution or of treatment in breach of his protected human rights in Israel or, indeed, in Egypt, Italy, France or Spain in all of which countries he had lived for some time. The Adjudicator found that the Appellant was a ‘national of Palestine resident in Israel’ and so was not stateless. He dismissed his appeal. The Appellant sought and was granted permission to appeal to the Tribunal by Mr Waumsley. The grant of permission was in the following terms:
“The grounds on which the Claimant seeks permission to appeal may be summarised as follows:
(i) as a stateless Palestinian, he would not be allowed to re-enter Israel, the country of his former habitual residence;
(ii) the Adjudicator erred in concluding that the only risks which would face the Claimant on return to Israel are those associated with a state of civil war;
(iii) the Adjudicator failed to give proper consideration to the expert evidence which was before him;
(iv) the figures quoted by the Adjudicator at paragraph 17 of his determination for the number of Palestinians killed between September 2000 and June 2003, and for the number of Palestinians resident in the Occupied Territories are incorrect.
With respect to the Adjudicator, there are aspects of his determination which give rise to legitimate concerns as to the correctness of his conclusion. In particular, in the first sentence at paragraph 16 of his determination, he has stated, ‘I find that he [the Claimant] is a national of Palestine resident in Israel so is not stateless’. In light of the fact that Palestine is not a country or territory recognised under international law, and is therefore not capable of conferring nationality, and that by the Claimant's own account, he was resident prior to his departure in the Gaza Strip in the Occupied Territories, not in the State of Israel, the Adjudicator's conclusion that the Claimant is not stateless is questionable, to put it at its lowest.
In addition, it appears from the Adjudicator's comments set out in paragraph 16 of the determination that he has misunderstood the effect of the decision of the House of Lords in Secretary of State for the Home Department v Adan [1998] Imm AR 338, [1998] INLR 325.
In light of the concerns caused by these aspects of the Adjudicator's determination, I am persuaded that this is a fit case in which to grant permission to appeal generally.”
Returning to the claim of the first Appellant, it was his case that in July 1999 he met and began a relationship with an Israeli girl and that this placed him in difficulties with Fatah and his father. In January 2000 when the Intifada was declared Fatah had called upon all Palestinians to join...
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