Tribunal decisions

The decision

AB (Algeria – scope of remittals) Algeria [2004] UKIAT 00323

IMMIGRATION APPEAL TRIBUNAL

Date: 1 November 2004
Date Determination notified:
21 December 2004

Before:

The Honourable Mr Justice Ouseley (President)
Mr A Jordan (Vice President)

Between:

SECRETARY OF STATE FOR THE HOME DEPARTMENT
APPELLANT

and

RESPONDENT

Appearances:
For the Appellant: Ms A Holmes, Home Office Presenting Officer
For the Respondent: Mr D Bazini, instructed by Irving and Co

DETERMINATION AND REASONS
The Adjudicator’s determination

1. The Claimant in this appeal by the Secretary of State is a male national of Algeria, who arrived in the United Kingdom in June 2000, and three weeks later claimed asylum. His asylum claim was rejected by the Secretary of State in January 2001. He appealed on asylum and human rights grounds to an Adjudicator, Dr A Thorndike, who dismissed his appeals under both Conventions in a determination promulgated on 7 December 2001.

2. The Adjudicator found that the Claimant was credible in all respects. The Claimant was then a 28 year old. He had run a grocery shop in Blida, a large town 40 kms west of Algiers, in the so-called “triangle of death”. The shop was on the ground floor of the family house where his mother lived. In 1993, armed men had demanded food; in 1997 terrorists had demanded £5,000, but he had refused to give it to them and had reported the matter to the police. The police took details and when the terrorists returned to repeat their demand, he refused again. Four to five months later, a letter arrived saying that he would be killed because he had gone to the police. He then spent time in another family house. In 1998, his brother, an army conscript was shot and badly injured by, it appears, a gunman. The Claimant then closed the shop. By this time, the Government had built a police post close to the shop but in January 2000, after the Claimant had re-opened the shop, the police post was attacked by terrorists. The Claimant decided that that was enough and left to live with his grandmother some 60 kms away but as that arrangement could not last, he left for France. Fearing that he would be deported quickly, he left for the United Kingdom. His family was not under any threat. The police post remained manned but there had been some bomb incidents in the area.

3. The asylum claim was dismissed because he had not been persecuted for a Convention reason; matters had improved greatly since his departure; there was an adequate level of protection and the continued guard post evidenced that. His family was not under threat and if he had really had a well-founded fear of persecution he would have sought asylum in France.

4. The ECHR claim was dismissed because he would face only a relatively mild interrogation at the airport.

5. The Adjudicator said, but did not explain why, he reached that decision with genuine regret. It is not obvious why, either. This gratuitous comment should not have been made, at least in the absence of some clear justification. The Claimant had no sound claim to international protection. He was a single male in his twenties, in reasonable health, who had no family here and had only been in the country eighteen months at the time.

6. The Claimant appealed on the ground that the evidence did not support the conclusion that there had been a change of such magnitude that someone who had been of interest to a terrorist group could now return safely to Algeria. The Tribunal, (Mr Batiste VP Chairman), concluded that there was at least a significant doubt about the level of violence in Blida. As the Claimant did not know which group had threatened him, it was not possible to conclude that the threat was over. The Tribunal took into account more recent material than the Adjudicator had been able to do. It concluded that the Claimant was justified in his fear of return to Blida now.

7. The Tribunal then examined whether there were other areas of Algeria to which the Claimant could return and concluded that there were many places to which he could safely return, of which Algiers itself was the most obvious, but not the only one. An assessment needed to be made of whether internal relocation would be unduly harsh. However, the Adjudicator had made no findings about that and as evidence was required before a conclusion could be reached on that limited issue, the case was remitted to Dr Thorndike. It was remitted on 7 May 2002 in these terms:

“In the circumstances, we have decided to adopt the suggestions of both Representatives. We allow this appeal to the limited extent that it is remitted to Dr Thorndike to take evidence and decide whether internal relocation would be unduly harsh.”

8. The Tribunal also remarked, and we would endorse what is said:

“We would suggest it is good practice for Adjudicators in cases such as this where internal flight could be an issue, to make appropriate findings, even if not strictly required in the light of their primary conclusions, so as to avoid the need for remittal.”

9. Matters then got into something of a procedural tangle.

10. When the appeal was remitted to the Adjudicator, and notwithstanding the apparent suggestion of both parties that the remittal be for the limited purpose of dealing with whether internal relocation would be unduly harsh, the Adjudicator records that it had been referred back for further consideration in the light of new objective evidence. We can see no suggestion that that was the purpose of the remittal.

11. The Adjudicator heard further evidence from the Claimant. His grandmother lived in a secure and prosperous suburb of Algiers, but it had not been practicable for him to stay there permanently because there was little room. He had never registered with the police there because he was terrified that they would pass on his details to their allies among the terrorists. The family had another house in Boudouaou, some 45 kms from Blida, where his wounded brother now lived. The shop remained closed and the rest of his family still lived above it. He had never worked anywhere other than in the shop, although he agreed that he had business skills. Boudouaou and Blida were too dangerous to live in. Nowhere was safe because of the network of GIA terrorists and their informants which would find him out. If he lived and registered with the police in the suburb where his grandmother lived, he would be unable to venture out of that area as his whereabouts would be known to the terrorists.

12. The submissions are important. The Home Office Presenting Officer relied on the same CIPU Report as had been before the Tribunal to urge that essentially all the larger towns were safe and that, as many others had done voluntarily, he could relocate to one of them. He was young, unattached, with relevant skills, and now fit. The absence of contacts or jobs in those cities could not be a factor of weight because he had come to the United Kingdom in precisely that situation.

13. Mr Bazini, who appeared then as now for the Claimant, submitted that the Claimant had a well-founded fear nationally. He would have to register with the police, and informers would let the GIA know. The expert evidence of Mr Joffe was that terrorists groups had a nationwide network of information partly derived from the police, including in Algiers. This was supported by a December 2001 Supplementary Bulletin from CIPU, and other press reports. He faced a specific threat of death. He would experience mental torture as a result of his deep-seated fear which would cause him on return to suffer inhuman treatment.

14. The Adjudicator’s conclusions are brief, and we set them out in full:

“25. In reaching my conclusions I have taken account of all the evidence before me, including the background information. I have carefully reviewed my earlier Determination and it is clear that the conclusions drawn at that time (late 2001) are not justified in the light of new evidence.

26. I repeat my positive findings on credibility. I acknowledge neither Blida nor Boudouaou are safe places for this appellant. I note the case of Demirkaya [1999] where it was held that past persecution means that future persecution is more likely (and the fear of it more likely to be well-founded) unless there has been a fundamental change in circumstances. I note the recent press and other reports in the appellant’s bundle which indicate that although terrorist activities are constrained in the cities, attacks still take place. Above all, I cannot ignore the death threat and the extensive network of information operated by the terror groups.

27. [The claimant] is clearly in considerable fear and internal flight is not in my considered opinion reasonable. Return followed by relocation would also involve hardship as he would be socially isolated, living in fear, not being able to live a ‘normal’ life. Return would certainly cause great anguish, breaching the Article 3 threshold, and could result in injury or possibly even death, for daring to oppose the GIA, namely for a Convention reason. I therefore allow the appeals.”

15. The Secretary of State appealed to the Tribunal against that determination, promulgated on 26 November 2002, in relation to its findings on the availability of internal relocation, which it was said was the only point remitted to the Adjudicator. He had failed to give due weight to the evidence in the CIPU Report and had been wrong to prefer the evidence of Mr Joffe. He failed to deal with the availability of protection, and a different decision of the Tribunal was noted. No consideration had been given to the potential for residing with the grandmother.

16. This appeal was first considered by the Tribunal, (Chairman, Mr Mackey), in a determination promulgated on 31 October 2003. The appeal was allowed. It rejected a submission from Mr Bazini that the determination of Mr Batiste’s panel had wrongly limited the consideration of the Adjudicator on remittal to the question of whether internal relocation would be unduly harsh, and that safety, which encompasses the question of protection as well, was too closely tied to the question of harshness for the two to be separated in that way. We comment that that submission would not appear to tally with the suggestions, recorded by Mr Batiste as coming from both parties in front of him, as to what course should be followed. Mr Mackey’s panel rejected the submission because although there was an overlap between the issues, the question of whether there were places to which someone in the Claimant’s position could safely relocate had been explicitly settled by the decision of Mr Batiste’s panel, leaving only the particular circumstances of the Claimant to be examined.

17. The Adjudicator’s specific reasons on relocation, the basis of his conclusions on Article 3, and the risk to the Claimant were rejected in short order as unsustainable and unreasonable. Permission to appeal was refused.

18. The issues raised on the application for leave to appeal were (1) as to whether the effect of the terms of the remittal by Mr Batiste was to limit the scope of the Adjudicator’s determination when the matters were again before him, (2) that the Tribunal had failed to address the new evidence which the Adjudicator had before him on that second occasion and (3), having ignored the significance of the Claimant’s evidence about registering with the police, ought not to have interfered with the Adjudicator’s decision. The matter was to come on for an oral hearing of the permission application when the Tribunal determination was quashed by the consent of the parties. The statement of reasons says that it is “arguable” that Mr Mackey’s panel erred in its conclusion that the Adjudicator was unreasonable because it had failed to deal with the Joffe evidence about police registration. The Secretary of State also now “considers it appropriate” that the separation of the issues of sufficiency of protection and internal relocation should cease and that the two should be considered together.

19. Accordingly the matter now comes before us. A few preliminary observations are necessary. First, it would obviously have been better if the representatives of both parties who suggested, as Mr Batiste records, that the matter be remitted on a limited basis had not made that suggestion. Neither kept to it. Mr Bazini argued before both the Adjudicator and Mr Mackey that there was no effective limit and appears at those stages to have met some understandable resistance from the Secretary of State. The latter does not appear to have thought through what his position was, until conceding the point without resistance before the Court of Appeal. If the views of the parties as expressed to Mr Batiste’s panel had been what they now appear to be, namely that there was no effective exercise of the power to limit the remittal in the way they suggested, other courses might have been followed: the taking of evidence by the Tribunal or the exercise of a specific remittal power for the purpose only of taking evidence on a particular point.

20. Second, we repeat our endorsement of what Mr Batiste said at paragraph 12 of his determination. We add that wherever possible remittals should be avoided and the Claimant should have realised that a possible conclusion of the Adjudicator was that he could safely return or return to a different place. He should have given evidence about it to the Adjudicator first time round. It is for an applicant for international protection to go further than to show that he has a well-founded fear in his home area; it is inherent in the claim that he has such a well-founded fear in any place in that country where it would not be “unduly harsh” for him to relocate. The burden of proof does not switch to the host country, on account of persecution in the home area, to show where within the country of origin he would be safe. A remittal to deal with that issue is therefore unnecessary if evidence that he cannot relocate to another part has not been adduced. It simply fails. If, however, such evidence has been adduced, the Tribunal should be able in most instances to assess it without remittal. Of course, much will depend on the reason for the alleged persecution; but where persecution or want of protection is or may be localised to the home area, the applicant must show that his well-founded fear is so extensive as to cover all areas to which he might reasonably relocate. We emphasise that because it has become clear that, in fact, even with the Adjudicator’s second determination, there is very little which has been drawn from the Claimant at any stage on whether relocation would be unduly harsh, and none which could not have been given shortly to the Tribunal. Yet the problem created by the remittal for that limited purpose has effectively delayed the resolution of this case for some long time.

21. Third, there was a specific power in the 2000 Procedure Rules, Rule 22(7) (a), available to Mr Batiste, had he been aware that what was suggested to him would prove contentious, to remit a case for the purpose of this evidence being taken. It is not a power commonly exercised, and has no direct counterpart in the 2003 Rules, but Mr Batiste might have used it. We also mention it because, although the terms of the remittal purport to limit the nature of the issues before the Adjudicator, the 2000 Rules contained no power for a limit to be imposed, apart from Rule 22(7), and we do not consider that that Tribunal was in fact exercising any such power.

22. Fourth, although the parties have agreed that the two issues should be joined, the reasons for the quashing are silent, rightly, as to what the nature of the Adjudicator’s powers are upon such a remittal. There is no judgment of the Court of Appeal and it is not for the parties to reach such a decision. It calls for judicial determination. It is an issue which needs to be addressed. To us, it is clear that, apart from any specific Rule, there is no power to limit the issues which are considered upon a remittal. The appeal is before the Adjudicator who may or may not be the same Adjudicator as heard the first appeal. The appeal remains to be determined. It is open to the parties to raise fresh issues, to adduce fresh evidence, to seek to contradict what has previously been concluded and to change the stance which has previously been adopted towards any evidence. Accordingly, the intentions of Mr Batiste’s panel could not be effected, Rule 22(7)(a) apart. Mr Mackey’s panel erred in holding that there was such a limit; and the Adjudicator was entitled to re-examine his earlier conclusions.

23. Fifth, it does not follow at all from that that upon a remittal the Tribunal should not express what issue has caused the remittal and what the Adjudicator needs to focus on. Quite the contrary. There may be no fresh evidence or argument on other issues. Even where there is, it should assist the conclusions of the Adjudicator to avoid error or at least its repetition.

24. Sixth, when an Adjudicator is dealing with a remittal on such a basis, it is an error of law for him to ignore what the Tribunal has said about the issues which have not occasioned the remittal and upon which it has expressed its clear conclusion. He is expected to follow those conclusions rather than to reopen them, unless there are good reasons for doing so. The mere fact that more evidence has been heard is not by itself sufficient; it is necessary to explain why that new evidence justifies differing from the Tribunal’s conclusion on those issues. It will also be necessary to look with considerable care, even scepticism, at evidence which could and should have been before the first Adjudicator or before the Tribunal.

The appeal before this Tribunal

25. We now turn to the grounds of the Secretary of State’s appeal before us. It became apparent during the course of Mr Bazini’s submissions that his first contention was that the Secretary of State had no effective appeal. This was, he said, because the grounds only went to the conclusions on internal relocation. The Adjudicator however had reached the conclusion that nowhere was safe and so internal relocation did not arise. This meant, he accepted, that the Mackey decision should not have dealt with the grounds of appeal, the quashing of that decision so that the appeal could continue was irrelevant and that all the subsequent parties’ time and costs had been simply wasted.

26. If there were any technical correctness in this contention, it was merely technical. The parties had known for a long time what the essential contention was and that that was that the Adjudicator had erred in finding that there was nowhere safe in Algeria to which the Claimant could safely and reasonably relocate without undue harshness. The focus in the grounds of appeal on the latter aspect derives from the basis of the remittal and represented an endeavour to keep within its limits. The ground of complaint in relation to internal relocation obviously includes an implicit assertion that the greater risk has also been assessed wrongly. The overlap is plain from the Adjudicator’s determination. He did not draw any clear distinction between the two, running them together in paragraph 27. The Secretary of State’s recognition that the two issues should now be joined had not led to any revised grounds.

27. In order to cut through this arid point, we invited Ms Holmes to seek to amend her grounds of appeal to allege that the findings that there was nowhere safe in Algeria were wrong in law for the same reasons that she relied on in relation to internal relocation. She did not seek to argue, without conceding the point, that the specific places where the Adjudicator found that the Claimant would be at risk fell within the safe area; these were Blida and Boudouaou. She had raised no challenge to that part of the determination. We allowed the amendment. It altered nothing of substance and could not possibly have taken Mr Bazini by surprise. It enabled the issues to be dealt with and we were surprised that he took such a point.

28. Mr Bazini also questioned whether there had been a finding as to the group which had threatened the Claimant. This affected the relevant background evidence and the significance of the expert evidence. It is not clear from the first determination of the Adjudicator whether any particular group was identified by the Claimant. It was clear however from the second that the group in question was the GIA. We drew Mr Bazini’s attention to what his client had said to the Adjudicator at the second hearing, paragraph 19, and to his submissions, paragraph 22, and to the conclusion in paragraph 27. We shall consider this appeal on the basis that the group in question is the GIA.

29. Turning to the arguments on the appeal, Ms Holmes submitted that the Adjudicator had failed to give due weight to the CIPU Report of October 2002, preferring wrongly the report of Mr Joffe for the Claimant. He had given no reasons for his preference and for discounting the CIPU material. Mr Joffe’s report was based on undisclosed private sources, and was couched in very general terms. He had ignored the potential for the Claimant to relocate to El Biar, or elsewhere in Algeria. If the current position were examined, the latest CIPU Report of April 2004 supported the contention that the Claimant could relocate in Algeria and in particular to Algiers. Many had done so.

30. Mr Bazini contended that the Adjudicator had not ignored the CIPU Report; he had set out the contentions briefly, and had simply preferred the Joffe Report as he was entitled to. No elaborate reasoning was required. There were newspaper reports which supported what Mr Joffe was saying about the influence of networks of informants, including those within the police. This would enable someone like the Claimant to be identified to the GIA if his whereabouts were to become known to any group. The extent of their infiltration of the police meant that registration with the police, which was necessary for lawful residence in an area, would risk his details being passed on to the GIA, who would then carry out their threat to kill him.

31. This meant that it would be unduly harsh for him to be returned because of the risks which he would face in consequence of registration, and the problems which he would face of prosecution for the criminal act of not registering were he not to register. The latter was his likeliest course. The Adjudicator had recognised the great anguish which return would cause. It would not be practicable for him to live with his grandmother, as he had already found. The fact that others might be able to return did not mean that this Claimant could.

32. Mr Bazini also relied on two further reports from Mr Joffe, of July 2003 and June 2004, and other background material which had not been before the Adjudicator.

33. We summarise first the material before the Adjudicator in order to see whether he made an error of fact or law. The Report from Mr Joffe which was before the Adjudicator at the second hearing, made as its first point, the treatment which Mr Joffe said would be received by the Claimant upon return at the airport. He risked detention and interrogation, and if returned on documents issued by the Algerian Embassy certainly would face detention and interrogation. He would face a real risk of ill-treatment and torture during this process because such treatment was standard police behaviour and it would be assumed that he was an Islamist because he had been abroad for some time.

34. Mr Joffe’s second point was that terrorism had not declined as contended by the Home Office. The Blida area had seen a resurgence, as the original focus of the GIA, and there had been repeated bombings in Algiers itself. This violence was the work of local groups which the authorities could not control. They were extremely vindictive and “tend always” to carry out their threats despite a considerable lapse of time. “They have clearly penetrated the local police service as they were able to establish that he had informed the police of their original demands and this was the reason for the threats made against him.”

35. His third point was that permanent relocation was not a viable option because of the shortage of housing in Algiers, and severe overcrowding; the usual pattern for temporary displacement was to move in with family members. This could not be a permanent solution. “In any case, there is no guarantee that this will provide [the claimant] with the kind of personal safety which he quite reasonably seeks.” The urban terrorist groups, although autonomous and localised, often had good informal contacts with groups elsewhere who would pass on information. The police had been penetrated by many of them. The need to register with the police upon arriving to live in a new area would mean that his whereabouts would be immediately known to the terrorists groups, with access to police dossiers. Safety through relocation would prove illusory.

36. He did not at that stage provide any source for his views, general though they were. He only did so in response to the Secretary of State’s grounds of appeal. We shall deal with those later.

37. The Adjudicator also had some newspaper reports from Algeria, which referred to a number of terrorist attacks. One said that, according to a reliable source, these attacks indicated that there was a co-ordination between the groups. Security sources noted that the attacks recently on Algiers were carried out by many groups. The mayor of one town which had been attacked called on the inhabitants to help the security forces with information.

38. The October 2002 CIPU Report before the Adjudicator undoubtedly paints a rather different picture. It referred to human rights abuses alleged against all sides in the killings; but paragraph 6.5 continued:

“There has been a shift in the past few years in the pattern and intensity of the violence. The overall security situation has improved as the security forces have largely brought the security situation under control and forced the insurgents out of the main cities into the countryside. The Algerian authorities are in control of the vast majority of their territory. As most people live in towns, many having voluntarily relocated for personal security reasons, the terrorist attacks are not a major feature of most people’s day to day lives.”

(The sources have been omitted from the quotation, but were set out.)

39. Section 4 referred to the level of killings in 2001: 1980 civilians, terrorists, and members of the security forces were killed, although the main cities were generally secure. The most prominent leader of the GIA was killed in 2002. There had also been elections. It contains no reference to a network between the various groups through which information would be shared about individuals or any other matter. Nor does it suggest that the police or security forces have been infiltrated by the terrorist groups; rather it refers to the allegations that the security services had infiltrated the terrorists and, worse, were carrying out attacks themselves.

40. There is no comment to suggest that those who told the police about demands from terrorists, which they had resisted and which had led to death threats, were commonly attacked years after the event. There is a risk to those who were servicemen or who had recently completed their service. Paragraph 5.86 said that government actions had diminished attacks on individual servicemen and that the terrorists “mainly launch general attacks against the civilian population in the regions rather than targeting specific individuals.”

41. However, dealing with the armed groups, paragraphs 6.24 and 6.25 said:

“6.24 Armed groups may threaten individuals (such as shopkeepers and entrepreneurs) in dangerous regions. Government officials and security forces and their families are also targeted. The GIA kidnap women for servitude and rape. The GSPC armed group targets security force infrastructure and personnel, rather than civilians, but there is no widespread threat to conscripts who have done their national service.

6.25 The violence takes place primarily in the countryside and smaller towns as the security forces have largely forced the insurgents out of the cities, except in the strongholds of the armed groups. … There are also some networks in Annaba and sporadic attacks in Blida.”

(Again we have omitted the source references.)

42. It identified the areas where the GIA was strong and where it had residual pockets. Identity cards had to be carried.

43. It identified, 6.121, those who were at risk on return; the Claimant did not fall into any of those categories. Failed asylum seekers could generally return safely; 6.123 to 6.126. They might face some irritations on return; it would be different for those in the risk categories.

44. We now deal with our conclusions on the alleged errors made by the Adjudicator. The crucial issue before the Adjudicator on the second occasion was whether there was a well-founded fear of persecution throughout Algeria, or whether there were areas to which the Claimant could safely relocate and where it would not be unduly harsh for him to do so. The evidence was divided, with two different pictures being painted. The first determination had reached the conclusion that the Claimant could return safely. Mr Batiste’s Tribunal had heard the appeal some eight months before the second hearing and its determination was six months before. It set out material from the December 2001 CIPU Report. It considered that material and concluded that “there are many parts of Algeria to which the Appellant could now viably and safely return and we so find. The city of Algiers is the most obvious but by no means the only option available to him.” Hence the requirement for an assessment of whether such internal relocation would be unduly harsh.

The Adjudicator’s error

45. It was open to the Adjudicator to conclude that he found the evidence of Mr Joffe preferable to the current CIPU Report. It is clear that he has done so. But on this issue, the crucial issue, he had to explain what his reasoning was. There are no reasons at all. Had he reasoned his conclusion as he should have done, he might not have sustained them. All that he says is that his earlier conclusions of late 2001 are not justified in the light of new evidence. There are a number of issues which he should have dealt with, not the least of which was the absence of sources for the very general comments made by Mr Joffe. He has failed to deal with the Secretary of State’s arguments on the issue or to provide any reasons for any conclusions upon them which he may have reached.

46. He also has ignored the first determination of the Tribunal which dealt with the general risk position and the position in Algiers and other unnamed cities. The only reason he could be regarded as giving is that he has had new evidence, principally the Joffe Report. Yet he makes no mention of the significance of the Tribunal’s conclusions at all, nor does he explain why he rejects them in the light of that new evidence. He had to provide some reason as to why that new evidence caused his previous determination, and the Tribunal determination to be no longer even relevant. Although the determination of the Tribunal chaired by Mr Batiste was not a decision intended to give authoritative guidance for a whole range of other cases, it was intended to give authoritative guidance for this particular case, and should not have been departed from without good reason, explicitly stated. Mr Joffe’s assessment of the situation refers to attacks continuing to take place; but that was the position in the earlier Tribunal determination and the question was where and upon whom.

47. In a reasoned determination, he would also have had to deal with the part of the Joffe Report which says that the return itself would be likely to lead to detention and ill-treatment at the hands of the government. The Adjudicator’s comment about a breach of Article 3 on return relates not to what the government might do at the point of return, but to what the GIA might thereafter do to the Claimant. The allegation that the government would ill-treat him on return is simply not dealt with, yet, if accepted, it would have been a very relevant consideration. There is no reason for him to have forgotten about it. He appears to have picked and chosen the parts of the Joffe Report which he accepted, without reasons. If he rejected part, it would have required him to explain why or why it was irrelevant. That could impinge on the weight which he could logically give to the rest of the Report. Perhaps he did not think that risk on return at the airport mattered, though it was equally new and controversial evidence.

48. We are satisfied that this determination cannot be regarded as sound. Its reasoning is legally inadequate; it has ignored a decision of the Tribunal which was directly in point and failed to deal with the issues before it, with the result that we are driven to reject the findings as unsustainable on the reasoning provided. As the Court of Appeal pointed out in Subesh v SSHD [2004] EWCA Civ 56, paragraphs 41, it is pragmatically easier to reach such a conclusion where the material is documentary. We add that that is especially so where the documentary material is background material rather than personal material relating to specific oral evidence heard by the Adjudicator, so that the Tribunal is every bit as well placed to assess it as the Adjudicator. We cannot say that the actual result reached by the Adjudicator is necessarily wrong at his stage, merely that his conclusion cannot be sustained on his reasoning. We also regard the failings and the omission of material considerations as showing an error of law.

49. We do not regard it as appropriate to remit the case for hearing before another Adjudicator. It has been too long in the appeal system already, and we are as well placed as anyone to deal with the background material upon which this case now turns. We have examined therefore the background material which the parties placed before us including material more recent than that before the Adjudicator. We now turn to it.
The new material

50. The Secretary of State relied upon the April 2004 CIPU Report. Ms Holmes referred us to a number of passages. Paragraph 6.3 said:

“There has been a change in the past few years in the pattern and intensity of violence as the overall security situation has improved and the security forces have largely brought the security situation under control and forced the insurgents out of the main cities in the countryside.”

51. The US State Department Report for 2003, it said, recorded reports that there had been a 61 percent decrease in the deaths of civilians, terrorists, and members of the security forces in 2002, down to 1162; the Algerian Government put forward a larger decrease. Nonetheless, the killings continue at that sort of rate; 6.40. There had been a major relocation of people to the northern urban areas for personal security reasons. There were references to violations of human rights by the security forces but that is not the basis of the claim.

52. Paragraphs 6.41 to 6.42 said:

“6.41 The violence occurred primarily in the countryside, as the security forces largely forced the terrorists out of the cities. The authorities continued to mount anti-insurgency operation. Since the 1990s many people have moved to urban areas to escape the attentions of armed groups.

6.42 A report by the Swedish immigration authorities of March 2003 reported ‘it should normally be possible to avoid threats from armed groups by the person concerned going to any of the largest cities which are to be considered as safe’. The Swedish report also stated ‘[However,] in the present situation, terrorism is not a great problem in the major cities. Cities such as Algiers, Oran and Constantine are surrounded by police forces. Terrorist violence has decreased enormously and attacks occur more and more rarely in comparison with the difficult years in the 1990s.’”

(We have again omitted the source references).

53. It referred to most recent reports estimating that the number of insurgents now numbered several hundred up to one thousand rather than the several thousands operational in the 1990s.

54. The GIA and the GSPC were loose groupings of militia rather than a coherent command structure. The GIA was involved in bombings and massacres aimed at officials and ordinary citizens who did not positively share its particular extremist viewpoint. It threatened individuals such as shopkeepers in dangerous regions. The GIA is dealt with in more detail in Annex C:

“14. The GIA is no longer a nation-wide force. In 1996 there were splits in the GIA that led to a number of smaller groups being formed. It is composed of semi-autonomous groups each controlled by local emirs. Allegedly, Algeria was divided into nine zones, each with an active group of between 20 and 300 members. Another report estimated that the groups each contained six to seven fighters whose actions were uncoordinated.

16. The current strength of the GIA is estimated by various sources as ranging between sixty, fewer than a hundred, two hundred, and several hundred. Nevertheless, they are still not a negligible force, bearing in mind that they are not afraid of the consequences of their actions. The major weakness of this group is that its members have lost the trust of the local population, following the horrible massacres that are attributed to them.

18. Many of their attacks are killings of ordinary people in rural areas, which include atrocities such as beheadings and massacres. Some attacks on communities are said to be because they had not provided support to the armed groups, and to steal food and goods. Others are false roadblocks set up by the GIA posing as soldiers for the purpose of extortion, robbery and murder.

19. The group members stay in an area for a few days only. If one of them comes down from the mountains and does not come back within one day, the group immediately leaves its hide-out and moves to another area. This is in case the person in question might have been arrested or might have decided to inform the police about his comrades and their hide-out.

20. The GIA is reportedly active in large sections of the northern part of the country notably in the central and western parts of the country, and in the Algiers region especially Mitdja, Medea, and Blida. They are scattered in various regions inside the chain of mountains in western Algeria such as the wilayas of Ain Delfa, Chlef and Medea. They compete for influence with other splinter groups that are mainly active in the centre-east and eastern provinces.

21. The GIA was also said to be very aggressive in the areas of Tipaza and Bouira where many cases of racketeering and extorting money from villagers were ascribed to them.

22. The GIA rejected the amnesty law. However, some GIA members surrendered to the Algerian authorities within the framework of the measures provided by the law on restoring civil accord.”

55. There is nothing about a network of information or infiltration of the police by the GIA or other groups. Rather the security forces are targets.

56. The position of returned asylum seekers is not described in a significantly different way from that before the Adjudicator.

57. Mr Joffe produced two further reports. That of July 2003 said that his sources for his earlier report were three French language Algerian daily newspapers, which he monitored and which were reputed to have excellent relevant contacts. He also had private sources which he was not prepared to disclose. Growing networks had recently been uncovered, with new threats of penetration into Algiers itself. There had been shootings of police and racketeering. Police corruption and collusion with the armed groups was said to be widespread and analysed in a book covering the period 1992-7. He recognised that by the very nature of clandestine groups, there would not be much detail, but he said that the general picture was clear enough. He exemplified what he thought the position was in and around Algiers and Oran, by reference to one of the newspaper reports for July 2003. This spoke of terrorist domination of certain areas as a result of passivity on the part of the municipal guards. It appeared that the terrorists and guards had agreed not to attack each other; they were informed daily about terrorist movements and walked openly in uniform in areas where they should have been in danger doing that. It was possible to say that there was complicity. Terrorists were able to operate openly in some areas.

58. From his personal sources, Mr Joffe could say that the police were often intimidated by local terrorists groups and were unable to offer protection. Blida and Boumerdes were centres of terrorist activity. El Biar was not as safe as the Secretary of State suggested and there were no details so consideration of it was pointless. The hardship aspects of his report were derived from an article which he had published in 2002. He had also studied the Algerian economy for twenty years and knew the country.

59. Mr Joffe’s second new report of June 2004 dealt with registration. Permanent residence, more than a few weeks, had to be registered with the authorities, and required an identity card. Failure to register was a misdemeanour usually punishable by a fine unless repeated. Non-registration could also be construed as evidencing involvement in illegal acts. The whole regulatory system was in some disarray and not enforced strictly because of the number of displaced people in Algeria.

60. Mr Bazini sought assistance from a letter dated September 2004 from UNHCR dealing with this case. It said that internal flight was not available for the majority; those who have fled have faced serious social and economic difficulties in their area of refuge, with critical shortages of water, housing and basic utilities. The government does not fully control any habitable territory. Those who returned might now face greater difficulties because of increased fears that they might have been involved in international terrorism.

61. An Amnesty International Report for 2001 identified many abuses of human rights, including that by the various security forces but it did not suggest that a problem was that they passed on information to the terrorists about those who registered with them; rather they were overly abusive and aggressive in their pursuit of the terrorists. A Human Rights Watch Report was to the like effect, as was a 2004 Amnesty International Report.

62. Mr Bazini said that there was an illustration of the way in which various different groups worked together in a newspaper article of July 2002 which said that there had been an upsurge of terrorist activity after an Al-Qa’eda envoy had been to Algeria. These attacks indicated that there was co-ordination between various groups. Many groups had recently targeted the capital. Another complained of the inactivity pf the security forces. None of these articles which he produced instanced someone bring targeted as an informer as a result of complaining to the police about terrorist activity or other threats.

63. The Tribunal has considered the situation in Algeria on a number of occasions recently. In MM (Djebari Decision-Evidence) Algeria CG [2003] UKIAT 00089, it was concluded that there was no risk on return merely as a failed asylum seeker. In AD (Ex-policeman) Algeria CG [2004] UKIAT00137, in June 2004, it was concluded that a former policeman might be at some continuing risk from the GIA were he to fall into the hands of those who knew him, but that that was now a remote possibility in view of the now limited scope and range of the GIA, provided that Claimant lived in the larger cities. The GIA was not active in Algiers as opposed to parts of the Algiers region. There were also other relocation possibilities. “There is no real risk that the GIA have now in place an intelligence network that would be able to identify him on return, even if they were interested in pursuing him.” (It is correct that that Tribunal did not have the Joffe report before it.)

Conclusion

64. We regard the evidence as showing that there is no real risk to this Claimant upon return. It has not been contended that the mere fact of the return of a failed asylum seeker to Algeria would cause him to run such a risk notwithstanding the much overstated views of Mr Joffe upon which the Claimant and the second Adjudicator rightly placed no weight.

65. The source of the risk to him is said to be that first the police are infiltrated so generally that his whereabouts risk becoming known to the terrorists. It does not matter which group have infiltrated the police where the Claimant becomes known; they co-operate with each other and would pass on his name. He would be at risk were he to register with the police and he would be at risk of prosecution and not having an identity card were he not to register. This is unrealistic on the material which we have seen.

66. The Claimant gave evidence at the second hearing that the terrorists had informers and co-operating networks everywhere in Algeria. It is not clear what basis he had for giving that evidence; he had not been in Algeria for some time and his evidence at the first hearing did not make such claims. His knowledge of how they operated appears to be limited to his experience of their local attacks.

67. He also gave evidence at the second but not the first hearing, at least so far as his statement and the evidence as noted by the Adjudicator go, about the existence of terrorist infiltration in the police force. However, he does not say what the basis of that is and what if anything he has learned since his first hearing. This matters because Mr Joffe uses what happened to him as the example of what happens generally, and it is not clear to what extent he is feeding off the Appellant rather than adding independent support. But the Claimant’s own evidence suggests that he did not regard the police as infiltrated to any significant extent. His statement for the first hearing, which he adopted, says that after he received the letter containing the death threat, he actually took it to the police who said that he need not worry. He clearly did not then think that they were infiltrated even locally. This was in early 1998. He had continued to open the very shop where the terrorists had made their demands and where they had left the threatening letter. Although he had again closed it after the shooting of his brother in Spring 1998, he had re-opened it in late 1999 and what caused him to close it was the attack on the police post and the fear which that attack on a source of protection caused.

68. In so far as Mr Joffe’s point about infiltration and extreme vindictiveness was based on the experience of the Claimant, as in part at least it is, it is plain that that would call for some qualification in the light of the above. There is one obvious way in which the group could have found out about the Claimant going to the police and that is because the police investigated the matter and that came to the notice of the group. They did not demonstrate extreme vindictiveness, going to any lengths to fulfil their threat as the subsequent actions of the Claimant show.

69. Mr Joffe did not produce any significant material to support any of his very vague and generalised comments. We accept that he has a general knowledge of Algeria, as he does of many North African and Middle East countries. He gives newspapers here as his main public source and a book. The book deals with historic material and there are no extracts from it to support either of the limbs of his contentions: infiltration and an information network between the groups covering this type of information. There are no newspaper articles which support his contention either at the general level or by way of a number of specific examples. The one which he did produce was more about private deals between the security forces and the terrorists to leave each other alone rather than infiltration of the police, with the effect that the information which the police have becomes available on any general level to the terrorists. And, we add, the article produced by Mr Bazini about the possibility of co-ordinated attacks does not really support the contention that groups pass on information about someone who had merely reported an incident to the police.

70. The use of private sources is problematic wherever it occurs. There is no description here of their position or means of knowledge, even if their names are not to be stated. We know that this is a not uncommon problem, but we would expect that more would be provided to enable the means of knowledge and the reliability of the source to be assessed. The next problem with such general information is that it provides no sound information about how frequent or rare an event is. It is not that we are sure that there is no infiltration of the police or that there are no occasions when information may be passed on, even about someone such as a shopkeeper who has refused to co-operate and has complained to the police, or that groups may not share some information of that sort; it is that we do not have a sound basis for concluding that there is a real risk that it would happen to this individual, either because of who he is or because of the general level of frequency at which it happens.

71. There is nothing in the material from Human Rights Watch or Amnesty International which suggest that the problems to which Mr Joffe refers exist at all. We would have expected them to have said something about the infiltration of the police by terrorists if it were more than occasional. Instead, the criticism of the police is as to their ruthlessness in going after the terrorists and anyone they suspect of terrorist connections and the role which they may have in infiltrating the terrorists and carrying out killings themselves. There is nothing to suggest a network of terrorist groups who exchange information about the likes of the Claimant or informants; there is merely some very general suggestion that there may be co-ordinated attacks because they occur at the same time, often to mark some past wrong by the government or a particular event. Again, if there were such co-ordination, we would have expected at least one other report to have picked it up from the same public sources as Mr Joffe, from their own private sources or from various incidents involving individual killings. The position of the reluctant shopkeeper is well known, and is referred to but not that they have been killed as a result of complaining to the police or of the police passing on information about them to terrorists, let alone in a different area and some years later.

72. We would also have expected the CIPU Reports to have made some mention of infiltration, or co-ordination in the respect alleged here, and of the length of time which the GIA was prepared to wait for its revenge, if there were anything in it as a point. But there is nothing.

73. We note that what Mr Joffe has to say about the return of failed asylum seekers is not put forward by the Claimant and that it is not in line with the Tribunal’s appraisal. We do think that that diminishes the weight which can be given to the whole report. Mr Bazini said that part could be reliable even if other parts were not. That may be so but we have seen nothing to enable us to differentiate in that way between the various parts of the Reports.

74. We also found it difficult to accept the chain of events which would have to occur for the Claimant to be in any danger. The police where he registered would have to be infiltrated, so the infiltration would have to be reasonably common for there to be a real risk. Yet if there were such infiltration, it is difficult to see how the Reports can describe the attenuation of violence in the way they do, even if there has been some recrudescence in Mr Joffe’s view. The infiltrator has to know or suspect that the newly registered person has been of some interest to the groups, unless any new registration reasonably often attracts some form of police record search to see if he has made a complaint to the police in the past. This search would have to be on a wide scale geographically. This would have to be done with some frequency in view of the numbers of dispplaced people and the problems experienced according to Mr Joffe in operating the registration system for them all. The right group would have to identified, yet the Claimant says that he did not know who they were when he reported the matter. There is absolutely no evidence that one group is prepared to carry out revenge attacks for another group, especially where that other is the GIA. The group has to maintain the desire and ability to carry out the attack. Yet the GIA did not do anything when they could have done when the Claimant was still operating the shop; nor is here any evidence that his family was threatened by them. The attack on his brother was because of his military service.

75. We do not consider that we can give very much weight to Mr Joffe’s Reports in the light of their generality, the inadequate description of the sources, and the lack of examples from the published sources, including his own, which support his contentions. We can see no reason why the detail or exemplification of his points could not have been provided were they sound. They are also at odds so far as matters here with other reports which we would have expected to contain something similar if it were sound. They do not fit with the Claimant’s own behaviour and are in part rejected on all sides.

76. Mr Joffe is well known as an expert witness in the Tribunal; some of his reports have been the subject of considerable criticism. This has been expressed in the context of Algeria in Slimani*. The Court of Appeal drew attention to this in Ddjebbar v SSHD [2004] EWCA Civ 804, paragraphs 24 and 45. It is clear that if a report of Mr Joffe is to be preferred to contrary evidence, the reasons for that preference have to be expressed; the reservations about the lack of sources and the possible fixity of views about a country need to be examined.

77. Mr Joffe does not differentiate between the various terrorist groups and does not deal with the position of the GIA. It is quite unjustified to treat them as all of a piece, with no differentiation in tactics, strength or location. The CIPU Reports do give some information which does not appear to be contested and it is clear anyway that that group is very much weakened from what it was in 1997. It is hugely unlikely, from that more recent material with the detail which it provides, that it has the capacity to find out the whereabouts of the Claimant or that it has any desire to exact revenge on him for what is trifling by comparison with what the security forces have been doing, and cannot be different from what many Algerians have done. Its capacity is now markedly less than it was. We accept the way in which it is described in the CIPU; that is consistent with what the Tribunal has held in AD, above. There is no sound evidence that it would seek to carry out a threat made in 1998 should it discover the whereabouts of the Claimant upon return in 2004/5.

78. We can see nothing in the fact that the Claimant would have to register with the police to cause concern therefore. If he chooses not to do so, the consequences are unlikely to be very serious. But as that failure would be a means of drawing himself to the attention of the authorities anyway, and then the asserted and feared consequences would follow, there is no reason for the Claimant not to register especially outside his home area.

79. We find it very hard to accept that this Claimant would be unable to relocate within Algeria or that he would face undue hardship upon return, relocating to one of the larger towns or cities. It is not necessary for him to be spared all prospect of random terrorist attack. The government clearly does provide a sufficient and real degree of protection in many areas, and in any event there are many areas in which the GIA simply does not operate beyond infrequent and random attacks. From the point of view of the Geneva Convention, there is nothing in the UNHCR evidence which suggests that the considerations relevant to its application, as held in AE and FE v SSHD [2003] EWCA Civ 1032, paragraph 38, would meant that return would involve a breach of its provisions. They represent the sort of considerations which the UNHCR, seeks to put forward in a wider humanitarian interest than the Geneva Convention requires. There is nothing about the return which would breach Article 3 in locations such as the larger towns including Algiers or Oran. The evidence does not show that the mental anguish would alone breach Article 3 and that overstated conclusion of the Adjudicator is based on fears that are not soundly based. It is unclear whether he included the risk of physical injury in his assessment of Article 3; grammatically, it would appear not from paragraph 27, but that may be too strict a reading. Either way this case does not approach the threshold of risk for it to be a breach of the ECHR for the Claimant to be returned.

80. We had to press Mr Bazini for what it was which made return unduly harsh for this Claimant. In reality his case was very much bound up with his case as to safety overall rather than there being any separate case based on particular locations to which he might have to go where relocation would be unduly harsh, even though this was the very point which led to his suggesting the remittal in the first place. We have dealt with the alleged problems which registration with the police would cause. There are of course general humanitarian concerns in Algeria to which Mr Bazini referred us but they do not come close to precluding a return for this Claimant. There are difficulties as the UNHCR material reports but they have to be seen in the light of this Claimant’s position. He is a reasonably healthy man in his late twenties. He has some skills and business experience which can be used. He has no dependants and has family in Algeria who can offer some assistance, even at a distance. He may be able temporarily or permanently to live with his grandmother in El Biar, if he is returned. There may be impracticalities which prevent that on a permanent basis, but the fact that he has not lived in some of the larger towns to which he could go safely, does not mean that relocation there would be unduly harsh. The Claimant has not demonstrated that there would be any breach of either Convention were he returned.

81. For those reasons, this appeal is allowed the decision is reported for what we say about the way in which remittals cannot be limited in their scope and the remitting decision must be considered.

MR JUSTICE OUSELEY
PRESIDENT