ABDELAZIZ NENNI v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,Lord Justice Keene,LORD JUSTICE KEENE,LORD JUSTICE MAURICE KAY |
| Judgment Date | 26 July 2004 |
| Neutral Citation | [2004] EWCA Civ 1077 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C4/2004/0428 |
| Date | 26 July 2004 |
[2004] EWCA Civ 1077
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Peter Gibson
Lord Justice Keene
Lord Justice Maurice Kay
C4/2004/0428
MR MARK HENDERSON (instructed by Messrs Fisher Meredith Solicitors, London SW4 6TA) appeared on behalf of the Appellant
MR SAM GRODZINSKI (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent
I will ask Lord Justice Keene to deliver the first judgment.
This is an appeal against the decision of the Immigration Appeal Tribunal ("the IAT") notified on 11th November 2003, whereby the IAT dismissed this appellant's appeal against a decision of an adjudicator promulgated on 17th March 2003. The adjudicator had dismissed the appellant's asylum and human rights appeals.
The appellant is a citizen of Algeria of Berber ethnicity. He arrived in the United Kingdom in February 1998 from France, being at that time aged 28. Before the adjudicator he gave an account of his experiences in Algeria. Only part of that account was accepted by the adjudicator as likely to be true, and those findings by the adjudicator are no longer challenged. I summarise therefore only that part which was accepted by the adjudicator.
The appellant did his military service in Algeria from 1992 to 1994 and then returned to civilian life working in a supermarket in Algiers. In June 1995 the army barracks where he had been stationed was attacked by terrorists. In the course of the investigation by the authorities into this incident, the appellant was arrested, detained and questioned. Again in January 1996, after a bomb explosion at a nearby bus station, he was arrested and detained. The adjudicator accepted that on these two occasions the appellant was detained in poor conditions and treated roughly, perhaps including some physical violence. The appellant's own evidence was that he did not suffer any physical injury, but the adjudicator accepted that these experiences caused him considerable distress and that he was extremely anxious about returning to Algeria.
On the first occasion when he was detained, that of June 1995, the appellant was detained for about ten days and then released without charge. The detention in January 1996 lasted some two weeks. Again he was released at the end of that time by the authorities. Again he was not charged with any offence, but he was required to report to the Gendarmerie at fortnightly intervals. When reporting he was treated, as the adjudicator found, to verbal abuse.
It seems that in 1997 he became depressed and stopped reporting to the police. He then went to stay at a friend's house where he remained for nine or ten months. During that time he worked in his friend's coffee shop for about three months. The adjudicator did not accept that the appellant was in hiding during this time and there was no indication that he had any difficulties with the authorities during this period.
In considering the issue of the risk to the appellant if returned to Algeria, the adjudicator referred to the various items of objective evidence put before him about the situation in Algeria, including the October 2002 CIPU report and the UNHCR guidelines. In the light of those documents, the adjudicator said this:
"There are individual 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. However, the Appellant is not in such a category and the authorities have never charged him with any offence. There is no credible evidence that he is of any current interest to the authorities upon return. If he was anxious about returning to his home district where he is known, he could move to another area."
The adjudicator then referred to the nine or ten months spent living in another area of Algiers at his friend's house and to the time spent working in the cafe there.
Thus the adjudicator concluded from all this evidence that the appellant did not have a well-founded fear of persecution if returned, nor any basis for a claim under Article 3 of the European Convention on Human Rights.
It is clear that the adjudicator found that on the two occasions when he was arrested, the appellant had not been specifically targeted, but had been rounded up in a "more generalised investigation into terrorist incidents."
Before the IAT the appellant's representative stressed the ill-treatment received during the two periods of detention, and indeed the IAT accepted that this treatment did attain a minimum level of severity involving physical and mental suffering amounting to a breach of Article 3 of the ECHR. It regarded that past treatment as a relevant factor to be taken into account.
The IAT then identified the issue as being whether there was a real risk of such treatment being repeated if the appellant were to be returned. The Tribunal accepted that there might be such a risk if he were perceived by the authorities as connected with the GIA (the Groupe Islamique Armé), an armed group responsible for many deaths in Algeria. The IAT reminded itself of the decision in Demirkaya v Secretary of State for the Home Department [1999] INLR 441, where this court referred to past experience of a claimant being probative of future risk unless there has been a significant change in circumstances. But the Tribunal concluded that it was open to the adjudicator to conclude that the appellant would not now be regarded by the authorities in Algeria as having any connection with the GIA.
In coming to that conclusion the IAT relied on the fact that the appellant had never been charged with any offence, that he had been rounded up in a generalised investigation into terrorist incidents, that he had been released by the authorities and that he had continued to live in Algeria for a number of months before leaving for France. The IAT said that there was considerable strength in the Secretary of State'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."
Consequently, said the IAT, it could properly be concluded that the appellant was not of any current interest to the Algerian authorities.
The appellant now submits that the IAT erred in law in the approach which it adopted. Mr Henderson, who appears on his behalf, relies heavily on the decision in Demirkaya, combined with the Tribunal's finding here that the past treatment of the appellant amounted to a breach of Article 3, even if towards the lower end of the scale. Yet the IAT did not identify any major change of circumstances in the situation in Algeria. Mr Henderson argues that the arrest and detention of the appellant twice in the past shows that he was suspected of involvement with the GIA, or at least of being a sympathiser, and that the background evidence shows, as the Tribunal accepted, that...
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