R (Nenni) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE PITCHFORD |
| Judgment Date | 05 November 2008 |
| Neutral Citation | [2008] EWHC 2936 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8234/2007 |
| Date | 05 November 2008 |
[2008] EWHC 2936 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Pitchford
CO/8234/2007
Mr Patrick Lewis (instructed by Fisher Meredith) appeared on behalf of the Claimant
Mr David Manknell (instructed by The Treasury Solicitor) appeared on behalf of the Defendant
(Approved by the Court)
This is an application with the permission of the single judge for review of the decision of the Secretary of State of the Home Department to decline to treat representations as a fresh claim under paragraph 353 of the Immigration Rules.
The claimant, Abdelaziz Nenni, is represented by Mr Patrick Lewis; and the defendant, the Secretary of State, by Mr David Manknell.
The claimant entered the United Kingdom on 6 February 1998 and claimed asylum a month later. He said that he had suffered persecution in his native Algeria and feared persecution and ill-treatment on his return.
The asylum application was refused and his appeal was dismissed. He was granted leave to appeal and the matter was remitted to an adjudicator for rehearing. The adjudicator, Mr Talbot, dismissed the appeal in a decision promulgated on 17 March 2003.
A further appeal to the AIT was dismissed but the claimant obtained permission to appeal to the Court of Appeal and that appeal was heard on 26 July 2004 and also dismissed.
On 14 October 2004 the claimant submitted to the Secretary of State further representations, relying upon evidence obtained from an expert, Mr George Joffé. Those representations were rejected on 9 November 2006. The Secretary of State declined to treat them as a fresh claim. On 18 December 2006 the claimant wrote expressing disquiet that the expert evidence had not been comprehensively addressed.
On 10 August 2007 the claimant renewed his application for further consideration, relying on country information.
The Secretary of State responded on 15 September 2007 with a further refusal containing a passing reference to Mr Joffé's report. Four days later the claim was issued to which the Secretary of State responded in an acknowledgment of service received by the court on 23 October 2007.
Sullivan J gave permission to the claimant to proceed on 7 January 2008, remarking in his observations that the decision letter of 15 September 2007 had arguably failed to engage with the case specific evidence provided by Mr Joffé in his report.
As one would expect, the Secretary of State further reviewed her position and on 11 April 2008 through the judicial review unit she issued an 8-page letter descending to particulars of her judgment upon Mr Joffé's report and its implications and her rejection of the assertion of a fresh claim.
Thus, I have been addressed by both parties upon the issue whether the decision made on 11 April 2008 was lawfully reached. If it was, then the claimant's recourse to anxious scrutiny of his position is complete. If it was not, then the claimant is entitled to a hearing before an immigration judge.
In order to follow the significance of the expert evidence it is necessary to know the background.
Before the adjudicator the claimant gave evidence that he was of Berber ethnicity and from Algiers, the capital city of Algeria. He underwent military service between 1992 and 1994. During his service he was approached by two men from the GIA, that is Groupes Islamiques Armés, an armed Islamic opposition to the secular government of Algeria, demanding that he provide a plan of his army base, weapons and other equipment. He reported the incident to his superiors. Following his national service, the claimant returned to civilian life as a security guard. In June 1995 he was arrested on suspicion of involvement in a terrorist attack on his former army base, detained and ill-treated. He was released without charge but in January 1996 he was arrested a second time, this time on suspicion of involvement in a bomb explosion at a bus station near the claimant's home. He was again detained and roughly treated.
On release he was required to report to the local police station. When he did he was insulted and accused of being a terrorist. He became depressed and fearful and ceased reporting. His father submitted a medical certificate to the police seeking his release from reporting. While the claimant was away from his parents' home they were visited by the gendarme who told them he was required to continue reporting; if he continued to fail to report he would instead be detained. The claimant fled to the house of a friend in the environs of Algiers about 8 kilometers away. In his statement the claimant said that within several days of fleeing his home he left the country and went to Marseille where he became a stowaway and by that means arrived in the United Kingdom by ship, carrying a French national ID card.
The adjudicator in his determination of March 2003 found that the claimant's evidence was basically credible. He did not, however, accept the approach by the two GIA men. This cast doubt on the veracity of his claim to have been the target of specific suspicion. It was more likely, and the adjudicator so found, that the claimant had twice been rounded up in a general sweep and ill-treated.
The adjudicator also rejected the initial claim that the claimant had fled to the United Kingdom in fear of the gendarmes. In evidence, the claimant eventually conceded that he had stayed with his friend for some nine to ten months, not, in other words, for a matter of days, and that during three months of that period he had worked openly in his friend's coffee shop. There was, the adjudicator concluded, no question of the claimant being in hiding.
As a consequence of his findings of fact, the adjudicator determined that the claimant was not among any category of persons who would be at risk of persecution or Article 3 mistreatment on return to Algeria. Had he been of interest to the authorities he would have been unable to work openly in his friend's café unmolested by the police.
The appeal from the AIT to the Court of Appeal also concentrated on risk to the claimant on return to Algeria. Since it was accepted that the claimant had in the past been the victim of ill-treatment, that was evidence of risk on his return. The court examined the AIT's finding that the adjudicator was nevertheless entitled to conclude that the risk no longer subsisted. The judgment of the court is at neutral citation [2004] EWCA Civ, 1077. Keene LJ, giving the judgment with which the other members of the court agreed, said this:
“It is beyond doubt … Both the adjudicator and the IAT in the present case had the past ill-treatment of the appellant very much in mind. They refer to it and they set out the considerations which led them nonetheless to conclude that the appellant would not be at risk in any real sense if returned to Algeria. Those matters can be summarised as being:
(1) The fact that he was not specifically targeted, but was arrested as part of a general round-up after terrorist incidents.
(2) The fact the, although ill-treated while in detention to a degree which breached Article 3, he did not suffer any physical injury on either occasion.
(3) The fact that he was not charged with any offence, but was freed by the authorities after a period of interrogation and detention.
(4) The fact that, even after he ceased reporting to the Gendarmerie in 1997, he remained living in Algiers at a friend's house but not in hiding for something of the order of nine to ten months before leaving the country, and yet experienced no difficulties with the authorities during that time. Indeed, there was no evidence that the authorities were even looking for him during that period.
23. All those considerations seem to me to be relevant and proper matters for the IAT to have taken into account, alongside the past ill-treatment itself, when assessing whether a real risk to the appellant existed if he were now to be returned to Algeria.
24. The last of those matters to which have referred seems to me to be particularly pertinent and is indeed part of a larger point, namely that the later of the two periods of detention took place in January 1996 and yet the appellant remained in Algiers for two years before leaving. It is true that for some of that time he was reporting to the police and was verbally abused, but he suffered nothing during the whole of that period that would amount to persecution or to Article 3 ill-treatment. The nine or ten months after he ceased reporting is significant, because of the lack of any interest being expressed in him by the authorities even though he was not in hiding. That passage of time and the attitude [of] the authorities towards him during it were, in my judgment, factors which could properly lead the IAT to conclude that, despite past ill-treatment, there was not a real risk of persecution or Article 3 ill-treatment if he were now returned to Algeria. Such factors can come within the decision-making framework indicated in Demirkaya.
25. Moreover, the IAT was entitled to regard that evidence as indicating that the appellant's breach of his reporting requirement would not now give rise to any real risk to him on return. It was open to the Tribunal to conclude that the appellant was not of current interest to the authorities.
26. I conclude, for my part, that the IAT did not adopt the wrong approach in law to the issues which they had to...
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