Tribunal decisions

The decision

IAC-FH-CK-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10200/2015

THE IMMIGRATION ACTS

Heard at Civil and Family Court Centre, Liverpool
Decision & Reasons Promulgated
On 27 January 2017
On 17 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

MA
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms R Chowdhury, Counsel, instructed by Greater Manchester Immigration Aid Unit
For the Respondent: Mr C Bates, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge Pickup) dismissing his appeal against the respondent's decision made on 6 July 2015 refusing his claim for asylum.
Background
2. The appellant is a citizen of Algeria born on 8 November 1968. His immigration history can be summarised as follows. He first arrived in the UK in October 2000 with entry clearance as a Tier 4 Student, his leave expiring on 28 January 2001. He did not leave the UK when his leave expired but he claimed asylum on 12 October 2001. His application was refused on 3 February 2005 and an appeal dismissed on 12 May 2005. An application for judicial review was refused on 25 August 2005 and the appellant became appeal rights exhausted on 27 January 2006. He was detained and removed to Algeria on 24 September 2007. The appellant returned to the UK making an illegal entry on 14 September 2012 when he made a further claim for asylum.
3. He claimed that when he was returned in 2007 he was escorted by UKBA staff and handed over to the Algerian authorities at the airport. He was mistreated by the Algerian police, interrogated for four hours and accused of being a traitor and a criminal by reason of claiming asylum in the UK and returning to Algeria with Home Office escorts. He was then detained in El Harrach prison when he was regularly interrogated about his activities in the UK and the activities of Muslim fundamentalists. After eight months he was released and he returned to his home village to live with his cousin. He was not allowed to work or leave the village without permission and had to return weekly to the local gendarmerie.
4. He became friends with a man named HB, who was in the same position, having been removed from Germany. There came a time when HB disappeared and the appellant became afraid. He made arrangements to leave Algeria by obtaining a false passport and visa for Turkey. He travelled to Istanbul where he was advised to go to Greece and travel to the UK from there. He was fingerprinted in Greece and told to leave within a month but instead he worked for some two years to save money to travel to the UK. He did not claim asylum in Greece or any of the other countries through which he passed on his travel to the UK including Austria, France and Belgium. He entered the UK illegally by hiding in a lorry.
5. The appellant's current claim for asylum was rejected by the respondent for the reasons set out in the detailed reasons for refusal annexed to the decision letter of 6 July 2015. The respondent was not satisfied that the appellant would be at risk because of an imputed political opinion arising from the fact that he would be returned for a second time from the UK. She did not accept that the appellant had been detained, imprisoned or had been ill-treated on his previous return in such a way as to amount to a breach of articles 2 and 3 of the ECHR and he had failed to substantiate his claim that he would face a real risk of persecution because of being a returned asylum seeker for a second time to Algeria.
The Hearing before the First-tier Tribunal
6. At the hearing before the First-tier Tribunal the appellant gave oral evidence relying on his witness statements of 24 October 2013 and 22 April 2016. The appellant also relied on an indexed and paginated bundle of documents which included expert reports from Mr David Seddon dated 7 November 2013 and 21 March 2016 and a document purportedly issued by the Algerian Ministry of Justice at A20 - 21. Documents relating to the application for an Emergency Travel Document (ETD) for the previous return were submitted by the respondent in a supplementary bundle.
7. Having considered the evidence in the round, the judge rejected the factual basis of the appellant's claim, finding that he had failed to demonstrate the truth and reliability of his account to the lower standard of proof [42]. He did not believe that the appellant had been detained for eight months as he claimed on his previous return to Algeria as he had lodged an appeal against his removal on 5 October 2007 about eleven days following his return. With this appeal he had submitted a significant number of documents although he had asserted that he had been returned to Algeria with no documents. The appellant claimed that the documents submitted with the appeal were printed off a memory stick on which he had saved copies of the documents whilst in the UK, saying that whilst in detention he was "somehow allowed to keep this because it was together with my keys." The judge found that it was simply not credible that the prison authorities who were said to have interrogated him to the extent that he now claimed to have a well-founded fear of persecution on return would allow him to retain a memory stick, print documents from it and enable him to appeal against his removal from the UK.
8. The judge also considered the ETD documentation which disclosed that with the application for the ETD made on 12 July 2007 was an expired passport and a birth certificate. It followed that these documents would have been supplied to the Algerian authorities for them to grant the appellant's ETD. The judge found that it was not credible that the authorities in Algeria would not also have copies of these documents including his fingerprints and a copy of the visa issued in Tunis on 28 July 2000 explaining the basis of his travel to the UK.
9. The judge also considered the document at A20 - 21 which, as translated, purported to be issued by the Algerian Ministry of Justice and addressed to the appellant. The subject is stated to be the refusal of an appeal against prosecution from unjustified absence and refusal to join the national gendarmerie team to sign in for his attendance. The judge commented that, whilst the translation was rather imprecise, it appeared from the body of the document that the appellant was prosecuted for non-compliance with his weekly compulsory signing in since 9 September 2009 and was sentenced in absentia to arrest.
10. The judge was not satisfied that this was a reliable document commenting that it was obvious that the main body of the document was either computer-printed or photocopied and that the two dates in the body of the document were in an entirely different format and font. He took account of Mr Seddon's opinion about the document, accepting that it was unusual and that he had not seen a document of this kind before but he understood from Algerian lawyer friends that this was a part of a procedure which was not uncommon in the case of those tried in absentia.
11. The judge also noted from the appeal notice, submitted when the appellant claimed to have been in detention apparently with no indication of when if ever he might be released, that the correspondence address was given as his home suggesting that that was where he was residing. The appellant now stated that the address was that of a general store in his village and that it was up to individuals to check if there was any mail for them and that he could not give the address of the prison as he did not trust them to give him his correspondence but on the appellant's account they had allowed him to receive a fax from a friend and to complete and submit his appeal from prison. The judge said that this account made no sense whatsoever and he rejected it as not credible.
12. The judge also noted that in his screening interview the appellant was asked if he had ever been arrested, charged with or convicted of an offence in any country and answered no. He now claimed that he did not understand the questions put to him, although at the beginning of the interview he claimed he spoke Arabic, English and French but also maintained that he was never asked if he had been detained in Algeria.
13. In summary, the judge found that the appellant's account of events in Algeria was so riddled with inconsistencies and without a shred of credibility that he could not accept any part of it. He rejected in its entirety his claim to have been detained and mistreated by the Algerian authorities and to have been sentenced in absentia. The appellant's previous asylum claim in 2004/2005 was on the basis that members of his family were killed, others kidnapped by terrorists and that he had been abused by officials when he criticised the mayor. In his subsequent appeal against the respondent's refusal of his claim, the judge had found that the core of his account of the attack on his family was credible but that he had embellished his account and he rejected the claim that the family had been specifically targeted. He had had no further problems with terrorists before leaving Algeria several months later and had never been arrested, detained or imprisoned by the authorities. In the present claim the appellant repeated that account and maintained that he had told the truth and wished to maintain his previous statements. However, the judge found no reason to depart from the findings of the previous tribunal decision.
14. The judge went on to consider the argument that the appellant would be at risk on return as a failed asylum seeker but commented that the strongest basis for concluding that he would not face any such risk was that he was returned in 2007 and had been able to live in Algeria without any adverse attention from the authorities, was able to make an appeal against his removal and did not leave Algeria again until 2012. The COIR referred to in the refusal decision at para 42 explained that although illegal exit from Algeria using forged documents has been criminalised and made punishable by imprisonment many thousands have done so and some detained in the process have been sentenced under these provisions. The judge commented that the appellant was not entitled to immunity from prosecution for criminal conduct if he did use a false document to exit Algeria, which had not been demonstrated.
15. The judge was not satisfied that there was any risk of mistreatment or serious harm on return for having left Algeria in 2012. He found that the appellant had failed to establish the core facts of his asylum claim to the lower standard of reasonable likelihood. He was satisfied that none of the events the appellant relied on had taken place and that his return to the UK was no more than as an economic migrant who could not find work in Algeria. Accordingly, the appeal was dismissed on asylum, humanitarian protection and human rights grounds.
The Grounds and Submissions
16. The grounds of appeal raise four issues. Ground 1 argues that the judge failed to pay anxious scrutiny to the appellant's documentary evidence and the expert report of Mr Seddon dated 21 March 2016. It is argued that the judge failed to consider the careful assessment of the document from the Algerian Ministry of Justice as analysed by Mr Seddon in paras 5.1 - 5 of his report and that the expert, not having seen a document of this kind, was free to use his expertise, knowledge and contacts with Algerian lawyers to confirm the procedure of issuing such a document for those tried in absentia. The judge had been wrong to assume that the expert had not considered the "computerised scan image of the red stamped box". Ground 2 argues that the judge failed to consider and apply anxious scrutiny to Mr Seddon's reports of 7 November 2013 and 21 March 2016 leading to unsafe credibility findings. The judge had failed to take into consideration the expert evidence at paras 4.3 - 4 of the report of 21 March 2006 and para 7.5 dealing with the issue of the risk arising from a second return to Algeria after failing to secure permission to stay in the UK. The judge had also failed to consider the objective evidence of the changes made to the penal code since February 2009 and that, if returned to Algeria, the appellant would face a sentence of imprisonment of between two to six months.
17. Ground 3 argues that the judge failed to give anxious scrutiny to the appellant's evidence making erroneous findings on whether he had a passport when at para 20 of his statement he confirmed that he had submitted his passport when he first claimed asylum on 12 October 2000. Ground 4 argues that the judge was wrong to rely on the appellant's screening interview, failing to take into account the judgment of the Court of Appeal in KD (Sri Lanka) v Secretary of State for the Home Department [2007] EWCA Civ 1384 and the tribunal decision in YL (Rely on SEF) China [2004] UKIAT 00145 that it had to be kept in mind that at a screening interview an appellant was not expected fully to set out his claim to asylum and that the purpose of the screening interview was not to establish in detail the reasons for the claim.
18. Permission to appeal was refused by the First-tier Tribunal but granted by the Upper Tribunal (UTJ Rintoul) on the basis that it was arguable that, as the renewed grounds of appeal aver, the judge failed to engage with evidence of the expert that there was an enhanced risk to the appellant on his second return to Algeria as a failed asylum seeker of facing serious ill-treatment (ground 2 at [8] - [10]), the judge commenting that whilst there was less merit in the other grounds, he granted permission on all the grounds.
19. Ms Chowdhury focused her submissions on the issue of whether the appellant would be at real risk on return because this would be the second occasion when he would be returned from the UK. The situation had changed from his first return as it was now a criminal offence in Algeria punishable by imprisonment to make an illegal exit using forged documents. She submitted that the position was more nuanced than that. The first time the appellant was returned he did not have all his personal documents. The risk to him would depend upon the perception the authorities took of him and his travel documents. There was a real risk, so she argued, of the appellant now being perceived as a terrorist as he was being returned on a second occasion. She further submitted that the judge had erred by the weight he had attached to the answers given at the screening interview. The appellant thought there was going to be a substantive interview and in these circumstances the judge had erred by attaching such weight to the fact that he had not mentioned his detention in Algeria at that stage.
20. Mr Bates submitted that the decision had to be read as a whole. The judge was entitled to take into account the fact that the first asylum appeal had been rejected. He had not accepted that the appellant had suffered consequences on return to Algeria. He explained why he did not accept the expert evidence and had properly taken account of the fact that the appellant had in the past been prepared to embellish and exaggerate his account of events in Algeria [57]. He was entitled to come to the view that, as the appellant had not been of interest to the authorities in the past, he would not be in future. The judge's findings and conclusions were properly open to him.
21. In reply Ms Chowdhury accepted that she was not submitting that all failed asylum seekers would be at risk but there would be a risk to the appellant arising from the fact that this was his second return as a failed asylum seeker and she referred to HS (terrorist suspect - risk) Algeria CG [2008] UKAIT 48 at para 9. She argued that the judge had not explicitly considered the implications of a second return which, if the evidence was looked at as a whole, did indicate a reasonable degree of risk. She accepted that the judge had been entitled to criticise the expert's report about the document from the Algerian Ministry of Justice but that criticism should not be a ground for tarnishing the whole of his report. She did not seek to make any further submissions on the other grounds of appeal.
Consideration of whether the Judge erred in Law
22. Ms Chowdhury did not seek to rely on ground 1, which sought to challenge the judge's approach to his assessment of Mr Seddon's evidence about the Ministry of Justice document. The judge's analysis of the document is at [49]. It is correct that in the report of 21 March 2016 Mr Seddon was aware of and referred to the two red stamps on the document but did not refer to the issue raised by the judge when he commented that the edges of the red ink box was not a rubber stamp impression but a computer-scanned image. He was also entitled to comment that whilst Mr Seddon had no reason to believe that the document was not genuine and authentic in the light of the enquiries he had made, his views had to be set in the context of the fact that he accepted that he had never seen such a document and he regarded it as unusual. It was for the judge to assess in the light of the evidence as a whole whether this was a reliable document and he was entitled to find that it was not. One point Ms Chowdhury seeks to make is that the judge's comments on the expert evidence in relation to this document should not be allowed to tarnish the approach to the expert's report as a whole.
23. This relates to ground 2, the ground on which UTJ Rintoul granted permission to appeal. The grounds set out paras 7.5 - 7.9 of Mr Seddon's report of 7 November 2013, concluding with his opinion that the appellant's fears of what might happen to him on return are both reasonable and well-founded. The issue for the judge was whether there was a real risk of detention and ill-treatment amounting to persecution at the hands of the Algerian authorities if the appellant is returned for a second occasion as a failed asylum seeker. When considering that issue the judge was fully entitled to take into account his rejection of the appellant's evidence that on the previous occasion he had been detained immediately on arrival in Algeria on 24 September 2007 and then kept in prison for some eight months. The appellant had asserted that he was returned without documents but when asked how he could lodge an appeal against his removal on 5 October 2007 about eleven days following his return which included a translated copy of his birth certificate and five educational certificates he said that they were documents printed off a memory stick to which he had saved copies of the documents whilst in the UK. It was his claim that he had been allowed to keep this memory stick whilst in detention in Algeria. It was open to the judge to find that the appellant's evidence about his detention, how he had been able to appeal against his removal whilst detained and enclose documents which he had copied from a memory stick was incredible. I have already dealt with the judge's view of the document from the Ministry of Justice which had been submitted to support an assertion that the appellant had been prosecuted for non-compliance with the requirement of signing in weekly. As the judge made clear, he rejected the appellant's account in its entirety but he did not fall into the error of regarding that finding in itself as determinative. He considered Mr Seddon's reports and explained why he did not accept his opinion.
24. Mr Seddon's conclusions are based on the appellant's account of events including his claim that he remained in El Harrach prison for eight months. In para 7.3 of his report Dr Seddon records the appellant's account that he was interrogated periodically about his reasons for leaving Algeria in the first place and how he did so but mainly about his possible involvement with Islamist fundamentalists in Manchester where he spent a good deal of time. It is Mr Seddon's view that this suggests he was suspected of involvement with terrorists and was arguably subject to persecution in that no charges were brought against him and he was not subject to due process. This may well be right but only on the assumption that the appellant's account of events was true. In 7.5 Mr Seddon expresses the opinion that it is highly likely that he will again be detained for questioning and particularly if again returned in handcuffs as a prisoner, he would be detained in prison for a lengthy period of time as someone suspected of some kind of involvement with Islamist fundamentalists and the fact that this would be the second time would make the Algerian authorities even more suspicious of why he was returned and what he was doing in the UK. The judge was entitled to evaluate the weight to give to this report in the light of the fact that he rejected the appellant's account of his claimed treatment on his last return to Algeria.
25. It was argued that since the appellant's last return, leaving Algeria using forged documents has been criminalised but the judge was entitled to take into account that many thousands had done so, some had been detained in the process and been sentenced under these provisions. However, as the judge said prosecution for a criminal offence does not amount to persecution unless it can be shown that the prosecution is being used as a political weapon against those falling under the suspicion of the authorities. This depends on whether the appellant is likely to be at real risk of adverse attention of the Algerian authorities for a Convention reason. I was referred to HS (Algeria) but in the light of the judge's findings of fact the appellant does not have the profile which might lead to him being suspected of involvement in or knowledge of terrorist activities. It was for the judge to assess whether there was a reasonable degree of likelihood, a real risk as opposed to a fanciful risk, of persecution on return. I am satisfied that the judge, having considered all the evidence in the round including the expert evidence, reached a decision properly open to him for the reasons he gave.
26. The second point taken by Ms Chowdhury related to the weight the judge attached to the appellant's failure at the screening interview to say that he had been detained (ground 4). Taking due account of the guidance in KD (Sri Lanka) and YL, the issue of the appellant's detention was a central issue to his claim and it was open to the judge to draw an adverse inference from his failure to refer to it at the screening interview. The judge's comments in [53] were properly open to him. Ms Chowdhury has not sought to make any further submissions about ground 3 challenging the judge's credibility findings in relation to the appellant's own evidence. As already indicated I am not satisfied there is any substance in this ground.
27. In summary, I am satisfied that the judge's findings and conclusions were properly open to him for the reasons he gave and that he did not err in law as argued in the grounds.

Decision
28. The First-tier Tribunal did not err in law and the decision dismissing the appellant's appeal stands. The anonymity order made by the First-tier Tribunal remains in force until varied or discharged.

Signed H J E Latter Date: 17 February 2017

Deputy Upper Tribunal Judge Latter