MA (Palestinian Arabs – Occupied Territories – Risk)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge |
| Judgment Date | 20 February 2007 |
| Neutral Citation | [2007] UKAIT 17 |
| Court | Asylum and Immigration Tribunal |
| Date | 20 February 2007 |
[2007] UKAIT 17
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Senior Immigration Judge Gill
Immigration Judge Dineen
For the Appellant: Mr. A. Bandegani, of the Refugee Legal Centre (RLC).
For the Respondent: Mr. K. Norton, Senior Home Office Presenting Officer.
MA (Palestinian Arabs — Occupied Territories — Risk) Palestinian Territories CG
Merely being a Palestinian Arab in the Occupied Territories, even if male aged between 16-35 from the northern part of the West Bank, does not mean that a person would face on return a real risk of persecution, serious harm under paragraph 339C of the amended Immigration Rules or ill-treatment contrary to Article 3 of the ECHR. This Determination, made with the benefit of up-to-date and detailed background evidence, updates and replaces AB & others as country guidance.
This is a second-stage reconsideration of the appeal of the Appellant (now about 24 years old) who is a Palestinian Arab from Tulkarm (sometimes also spelt as Tulkaram) in the northern part of the West Bank. The Appellant arrived in the United Kingdom on 29 June 2003 and claimed asylum on arrival. In the Respondent's Notice of refusal of leave to enter dated 4 December 2003, it is stated that he proposes to give directions for the Appellant's removal to the “Palestinian Occupied Territories”. This appears to supersede a Notice of refusal of leave to enter which is signed but not dated and which states that the Respondent proposes to remove the Appellant to “the Palestine Authority”. At the hearing on 15 November 2006, Mr. Norton informed us that the Respondent proposes to remove the Appellant to the Occupied Territories via Jordan and the King Hussein Bridge (also known as the Allenby Bridge). It was the agreed position of both parties before us that the Appellant would have to pass through checkpoints manned by the Israeli authorities at the King Hussein Bridge and that, thereafter, he would have to pass through checkpoints (“several” in Mr. Norton's submission and “numerous” in Mr. Bandegani's submission) in order to travel back to Tulkarm, the Appellant's hometown.
The West Bank is populated by 2.5 million Palestinians. It borders Jordan to the east and Israel to the south, north and west. There are about 420,000 Israeli settlers living in the West Bank.
The parties agreed that the issue before us is whether there is a real risk that the Appellant would be persecuted or subjected to ill-treatment in breach of his rights under Article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) by the Israeli authorities on seeking entry through the King Hussein Bridge, and thereafter. The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 came into force on 9 October 2006 (“Protection Regulations”), as did command paper 6918 (Cmnd 6918) which amended the Immigration Rules. Pursuant to the President's Practice Direction of 9 October 2006, we also need to consider whether the Appellant is entitled to humanitarian protection if he is not entitled to refugee status.
As stated above, this is a second-stage reconsideration. The Appellant's appeal was originally heard on 2 December 2003 and 29 March 2004 by Mr. G. Jamieson, then an Adjudicator. The Appellant had claimed that he was a member of Fatah and that, whilst at university in Tulkarm, he was critical of the then leader of the Palestinian Authority and in particular Yasser Arafat. He claimed that he subsequently experienced problems from two of his friends who took exception to his criticisms, that he was attacked by these two friends on 7 May 2003 and that he subsequently received telephone threats from them. He says he complained to the local Fatah branch, but was abused by the officer in change. He says he then had no choice but to escape.
The following is a summary of the Adjudicator's findings and conclusions:
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(a) The Adjudicator did not find the Appellant credible and rejected his entire account of these events (paragraph 17 of the Determination).
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(b) The Adjudicator did not consider that there was a real risk of any ill-treatment at the hands of the Palestinian authorities or Fatah, because he did not believe that the Appellant had been a credible witness (paragraphs 17 and 26 of the Determination).
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(c) The Adjudicator then went on to consider whether the Appellant would be at real risk of persecution or Article 3 ill-treatment at the hands of the Israeli authorities who are in occupation of Tulkarm. In this regard, the argument advanced to the Adjudicator was that the Israeli authorities have imposed restrictions on the movement of Palestinians within the West Bank, that the Appellant would therefore be liable to be stopped at Israeli checkpoints and that this would amount to persecution or, failing that, to treatment in breach of Article 3. The Adjudicator found that such restrictions would not be so severe as to amount to persecution (paragraph 20 of the Determination). He found that the Appellant would not suffer treatment amounting to torture or inhuman treatment at the hands of the Israeli authorities on account of the restriction of his movements as a Palestinian in the West Bank. However, he concluded that Israel's treatment of the Palestinian people amounts to degrading treatment of the Palestinian people in their own territory. He therefore accepted the submission advanced on the Appellant's behalf that there is a real risk of the Appellant as a Palestinian, and especially as a young Palestinian male, being subjected to degrading treatment by the Israeli authorities if returned to the West Bank. Accordingly, he allowed the appeal on human rights grounds, Article 3. He did not find that the Appellant's removal would be disproportionate to his right to family life with his sister who was then in the United Kingdom (she has since returned to the West Bank). Accordingly, the Adjudicator did not find that Article 8 would be breached by the Appellant's removal.
The Respondent's grounds of application for permission to appeal to the Immigration Appeal Tribunal (IAT) contend as follows:
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(a) that, although the background evidence before the Adjudicator details incidents of harsh treatment of Palestinians by the Israeli authorities, the evidence was not such that all Palestinians are subjected to such treatment, nor did the evidence show that the Appellant faced a real risk of treatment reaching the level of severity required to engage Article 3;
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(b) the fact that the Appellant had not had any problems from any of the authorities in the past is a relevant factor which should have been considered by the Adjudicator when assessing the likelihood of ill-treatment in the future. In this regard, the grounds contend that the Appellant had not given any history of having faced any problems from any of the authorities in the past and that, at his asylum interview and in cross-examination, he was asked if he had ever had problems with anyone other than the Al-Fateh group and, on both occasions, he confirmed that he had not.
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(c) the comparison which the Adjudicator made at paragraph 25 between Somali minority clans and returning Palestinians is not relevant and that the Adjudicator's opinion that all returning Palestinians are at real risk of ill-treatment contrary to Article 3 is purely speculative.
On 13 May 2004, a Vice President of the IAT granted permission to appeal. The appeal was not heard by the IAT before 4 April 2005, when the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (“the 2004 Act”) came into effect. Pursuant to the transitional provisions relating to the 2004 Act, the Asylum and Immigration Tribunal had to deal with the appeal as if it had originally decided the appeal and was reconsidering its decision. The first-stage of the reconsideration took place on 17 March 2006. The panel (chaired by Immigration Judge Widdup) gave the following reasons for its decision that there was an error of law in the Adjudicator's Determination:
- In paragraph [sic] the Adjudicator found that there was not a real risk that the Appellant would suffer torture or inhuman treatment at the hands of Israeli forces on the West Bank. The Adjudicator went on to find in the next paragraph that the restrictions on Palestinians amounted to degrading treatment and that returning the Appellant to the West Bank would expose him to a real risk of degrading treatment contrary to Article 3 of the ECHR. 2. It is arguable that the treatment relied upon by the Adjudicator does not reach the level of ill treatment required to engage Article 3. 3. The Adjudicator had found in paragraph 20 that the restrictions imposed on the Appellant did not amount to persecution within the meaning of the Refugee Convention. 4. The Appellant had not put in a Reply seeking to challenge that finding. The Appellant submitted that if the restrictions on the Appellant engaged Article 3 the Adjudicator should have found that the Appellant was also at risk of persecution. It was submitted that this was a Robinson obvious issue which should be pursued even though not specifically taken thus far. The Respondent did not oppose that course. 5. We therefore concluded that the Adjudicator had erred in his assessment of Article 3 or that he had erred in his assessment of the risk of persecution.
That panel identified the following issues for consideration at the second-stage:
- whether there is a real risk that the treatment likely to be experienced by the Appellant on his return to the West Bank engages Article 3 or is sufficient to amount to persecution; 2. whether the Appellant is a member of a particular social group likely to be subjected to persecution on account...
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