Petition Of Said Amara For Judicial Review V.
| Jurisdiction | Scotland |
| Judge | Lord Nimmo Smith |
| Date | 11 January 2002 |
| Court | Court of Session |
| Published date | 19 February 2002 |
| OUTER HOUSE, COURT OF SESSION | |
|
| OPINION OF LORD NIMMO SMITH in the petition of SAID AMARA Petitioner; for Judicial Review of (i) a decision to deport the petitioner made on 23 October 1997, (ii) a determination dated 26 February and promulgated 3 March, both 1998, of a Special Adjudicator, and (iii) a determination of the Immigration Appeal Tribunal dated 17 March 1998 ________________ |
Petitioner: Sutherland; (for Gray & Co Solicitors, Glasgow) Lindsays, W.S.
Respondent: Lindsay; Solicitor to the Advocate General
11 January 2002
[1]The petitioner is a citizen of Algeria. He left that country on 21 May 1995. In the course of his subsequent travels he visited several countries. He returned briefly to Algeria on two occasions in 1995 and otherwise remained outside that country. In January 1996 he obtained entry clearance from the consular section of the British Embassy in Tunis to travel to the United Kingdom for medical treatment. He entered the United Kingdom for that purpose on 1 February 1996, with leave to enter for six months. On 18 July 1996 he applied for further leave to remain in the United Kingdom so that his medical treatment could continue, and in due course leave was granted to him to remain until 31 March 1997. Thereafter he remained in the United Kingdom without authority.
[2]Before proceeding further with the narrative of events, I require to make reference to the main statutory provisions governing the petitioner's position. The primary statutory provisions were contained in the Immigration Act 1971 ("the 1971 Act") and the Asylum and Immigration Appeals Act 1993 ("the 1993 Act"). Some provisions of these Acts were repealed by the Immigration and Asylum Act 1999 ("the 1999 Act") with effect from 2 October 2000, except in relation to events which took place before that date, so for present purposes it is to the 1971 and 1993 Acts alone that reference requires to be made. The 1971 Act provides by section 1(2) that those not having the right of abode in the United Kingdom may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by the Act. Section 3(1) (as amended) provides inter alia that where a person is not a British citizen he shall not enter the United Kingdom unless given leave to do so in accordance with the Act, and that he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period. Section 3(3) provided inter alia, in the case of a limited leave to enter or remain in the United Kingdom, that a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration. Under section 3(5) (as amended, but prior to amendment by the 1999 Act), a person who was not a British citizen was liable to deportation from the United Kingdom if, inter alia, (a) having only a limited leave to enter or remain, he remained beyond the time limited by the leave. Section 5(1) provided inter alia that where a person was under section 3(5) liable to deportation, then the Secretary of State might make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom.
[3]Section 3(2) of the 1971 Act provides inter alia that the Secretary of State shall from time to time lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of the Act for regulating the entry into and stay in the United Kingdom of persons required by the Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances. The relevant rules are contained in the Statement of Changes in Immigration Rules (HC 395) laid before Parliament on 23 May 1994, which came into effect on 1 October 1994. Part 13 thereof relates to deportation. Omitting reference to amendments subsequent to the decision-making process with which I am concerned, Rule 364 provides as follows:
"364In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. Deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority. Before a decision to deport is reached the Secretary of State will take into account all relevant factors known to him including:
(i)age;
(ii)length of residence in the United Kingdom;
(iii)strength of connections with the United Kingdom;
(iv)personal history, including character, conduct and employment
record;
(v)domestic circumstances;
(vi)previous criminal record and the nature of any offence of which
the person has been convicted;
(vii)compassionate circumstances;
(viii)any representations received on the person's behalf."
[4]The provisions of the 1971 Act require to be read in light of those of the 1993 Act. By section 1 the latter Act provides that the expression "claim for asylum" means a claim by a person that it would be contrary to the United Kingdom's obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to that Convention ("the Refugee Convention") for him to be removed from, or required to leave, the United Kingdom. Section 2 provides that nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Refugee Convention. By Article 1A(2) of the Refugee Convention the term "refugee" is defined as applying to inter alios any person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. Article 33(1) provides that no contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Part II of H.C. 395 contains rules relating to asylum applications.
[5]The interpretation and application of the provisions of the 1993 Act have been variously considered. In R v Secretary of State for the Home Department, ex p. Sivakumaran [1988] AC 958 the House of Lords held inter alia that whether the applicant for refugee status had a well-founded fear of persecution within the meaning of Article 1A(2) of the Refugee Convention was to be determined objectively in the light of the circumstances existing in the country of his nationality; and that the applicant had to demonstrate a reasonable degree of likelihood that he would be persecuted for one of the reasons referred to in Article 1A(2) if he were returned to that country. I refer in particular to the speeches of Lord Keith of Kinkel at p. 994F and Lord Goff of Chieveley at p. 1000F-G. This decision therefore established that the burden of proving entitlement to refugee status rests on the applicant, and that the standard of proof is that there is a reasonable degree of likelihood of persecution for a reason falling within the Refugee Convention.
[6]The phrase "is outside the country of his nationality" is discussed in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, published in 1979 by the office of the United Nations High Commissioner for Refugees ("the UNHCR"), which is regarded as authoritative. Paragraph 94 of the Handbook states:
"The requirement that a person must be outside his country to be a refugee does not mean that he must necessarily have left that country illegally, or even that he must have left it on account of well-founded fear. He may have decided to ask for recognition of his refugee status after having already been abroad for some time. A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee 'sur place'."
Paragraph 95 states, in part: "A person becomes a refugee 'sur place' due to circumstances arising in his country of origin during his absence."
[7]The situation of Algeria in recent years is well-known, and has been considered by the courts in the United Kingdom on a number of occasions: see, for example, Abdadou v Secretary of State for the Home Department 1998 SC 504. In the present petition a number of sources of information are referred to, and various productions have been lodged in support of averments that in 1997 (and subsequently) Algeria was in such a state of internal turmoil that ordinary civilians in general and young males such as the petitioner in particular were at real and constant risk of their lives. The productions include a UNHCR Memorandum dated 21 November 1997. In this, Algerians seeking asylum in other countries were divided into three main categories, one of which was "those who claim to be threatened by militant Islamic groups because of their real or alleged support to the Government". This group included members of the security forces. With regard to this group, paragraph 3.1.6 of the Memorandum stated:
"With regard to persons claiming persecution by non-State agents, an essential criterion against which to assess the need for international protection is the absence of effective national protection against...
To continue reading
Request your trial