LD (Algeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Judge |
| Judgment Date | 30 June 2004 |
| Neutral Citation | [2004] EWCA Civ 804 |
| Docket Number | Case No: C1/2003/2402 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 June 2004 |
[2004] EWCA Civ 804
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Right Honourable Lord Justice Judge
The Right Honourable Lord Justice Tuckey and
The Right Honourable Lord Justice Kay
Case No: C1/2003/2402
R. Singh QC and E. Fripp (instructed by Wilson &Co) for the Appellant
A. Hunter (instructed by Treasury Solicitor) for the Respondent
This is the judgment of the Court.
Lkrim Djebbar (the appellant) was born in March 1972. He is a national of Algeria. He arrived in the United Kingdom on 1st September 1995, entering as a visitor with leave to remain for 6 months. On 30th October he claimed asylum. This claim was refused by the Secretary of State for the Home Department (SSHD) on 14th August 1996. He appealed to an adjudicator, who, after a hearing on 17th December 1997, found that he was not at any relevant risk and dismissed his appeal in a decision promulgated on 18th May 1998 (the first adjudication) . An application to appeal further to the IAT was rejected on 30th June 1998.
The appellant did not leave the United Kingdom, and as far as we are aware, no steps were taken to remove him before 2nd October 2000, when the Human Rights Act 1998 came into effect. Thereafter he made a further application, in effect arguing that his removal from the United Kingdom would contravene his rights under the 1998 Act, and in particular those arising under Articles 2, 3, 5 and 8 of the ECHR. This application was rejected by the SSHD, by letter dated 19th September 2001. His subsequent appeal (the second adjudication) was upheld. The determination was promulgated on 28th October 2002. The SSHD was granted permission to appeal to the IAT. This appeal was allowed by a determination promulgated on 9th September 2003.
This is an appeal, with permission of the single Lord Justice, from the determination of the IAT dated 9th September 2003.
The first adjudication
The grounds of appeal from the August 1996 refusal were prepared by legal representatives. Some three weeks before the hearing before the first adjudicator, due to non-payment of their fees, the legal representatives withdrew. At the hearing the appellant requested permission to represent himself. The first adjudicator agreed to his request. The appellant gave oral evidence in support of his claim.
He described an attack on him in early 1995, in which he was beaten up by a group of 5 or 6 students at the university. He was being punished for the "crime" of having defended the use of the French language at the university and organising a petition to have it re-instated in the faculty of economics. After beating him, his assailants warned him that if he continued these activities he would be killed. He took these threats seriously, and complained directly to the police. Their response was that the affair should be dealt with internally at the university. Accordingly, he returned to his village. A group was formed to provide him with protection. Nevertheless he received a series of anonymous telephone calls threatening his family, which was frightened by the threats and told him that he should leave. And that is what he did.
The appellant told the first adjudicator that if he returned to Algeria his life would be in constant danger. He would only survive for a short period. The authorities would be looking for him and he would be targeted and killed. He explained that simply by being an intellectual, he was disobeying the government and Islamist fundamentalists. He was pleading for the right to free expression, and to use several languages including his own Berber language as well as French. However, by doing so he had become a target for terrorists. He said that he had been told that he was a mischief-maker, defying the Koran and God, and he deserved to die. If he did not leave Algeria, or cease his intellectual activities, he would end up dead. He said that he would prefer to die physically rather than intellectually.
The appellant submitted and relied upon a statement attacking the Home Office refusal letter. In essence, he complained that there was no understanding of the realities in Algeria, in which innocent people were being massacred. He also said that he had further documents which would demonstrate that individuals using French in Algeria were being charged with criminal offences. The only official language was Arabic, and as a Berber activist, he was under threat. However he did not disagree that shortly before he left Algeria, a Commission for Berber affairs had been created by the Algerian government.
We can take the essential conclusions directly from the written determination by the first adjudicator, Ms S. Beg.
"I have not found the appellant entirely credible. I accept that the appellant is committed to the reinstatement of the French language in Algeria, and in particular in the Faculty of Economics of the University of Tizi Ouzou.
The assault of the Appellant at the University in 1995 was carried out by fellow students. Whilst the appellant said that he reported it to the Police, he did not take up the matter to any great degree with the University or assist them in tracking down his assailants. The Appellant's attackers cannot be described as "Agents of Persecution" since the Authorities in Algeria would not knowingly tolerate them or refuse to prove unable to offer effective protection. The Country Information contained in the file refers to action taken against Islamists by the Authorities.
The Appellant left the University and clearly abandoned his campaign for the reinstatement of the French Language at the University. I find that the Appellant could have availed himself of the protection of the Algerian Authorities with regard to the further threat that received once he went home to his family. I find that the Appellant was neither sought nor targeted as he claims. I find that he made no effort to go and live in another part of Algeria or change his telephone number. The Appellant said in cross-examination that his brother was beaten up in 1980 for supporting the Berber people. However, the Appellant accepted that after 1980 there was an improvement and did not disagree with the Respondent's assertion that in May 1995 the Algerian government created a High Commission for Berber Affairs.
I find that the Appellant provided no documentary evidence to support his assertion that the Consulates of France, Spain and Italy did not issue Visas or if they did, it was certain periods in the academic year. The Appellant gave that as the reason for his delay in leaving Algeria and for obtaining a British Visa from the British Consulate in Tunis. I accept the Respondent's view that in British diplomatic world the issue of visas is not limited to specific times of the year.
Prior to coming into the United Kingdom, the Appellant had travelled to France, Spain and South Africa. I find that the Appellant's explanation as to why he did not claim Asylum on arrival into the United Kingdom implausible. The Appellant said his life was quite normal before the assault at University.
I find that the Appellant does not have a well-founded fear of persecution for a Convention reason. I further find that the decisions of the Respondent have been in accordance with the law and the Immigration Rules."
The first appeal to the Immigration Appeal Tribunal (IAT)
Grounds of appeal to the IAT were served. Legal representatives were once more employed on the appellant's behalf. The grounds for the proposed appeal included no relevant complaint about the procedure before the first adjudicator, and made nothing of the appellant's possible inability adequately to represent himself. In essence the first adjudicator's adverse findings about the appellant's credibility, particularly in relation to his failure to pursue his complaint to the police, and the university authorities, were criticised. The application for leave to appeal was refused. The determination reads:
"The special adjudicator heard oral evidence from the applicant, whom she assessed as not credible on matters at the heart of his claim; the applicant had every opportunity at the hearing to reply to the submissions going to credibility made on behalf of the respondent. It is only rarely that a tribunal will interfere with findings of primary fact by a special adjudicator, and there is no basis for doing so in this case.
The special adjudicator appears to have considered all the evidence before her … she properly directed herself as to the correct standard of proof and applied it. The tribunal considers that the conclusions of the special adjudicator are fully supported by the evidence. Read as a whole the determination is a full, fair and reasoned review of the applicant's case. There is no misdirection in law …"
There was some dispute before us about the true effect of the adjudicator's adverse conclusion about the appellant's credibility. Certainly, she did not say that she disbelieved his evidence in its entirety. Equally however, as her subsequent findings demonstrate, she did not believe significant parts of the case he was supporting in evidence. In our view the determination is clear enough. The adjudicator indicated those parts of the evidence which she accepted, and those which she rejected. She neither believed nor rejected it in its entirety, but she rejected the essential foundations for the claim.
The appropriate forum for an appeal against this decision was the IAT. That of itself demonstrates...
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