[2004] UKIAT 212
- Case title: FT (National service, Fear of GIA)
- Appellant name: FT
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Algeria
- Judges: Mr R Baines JP, Mr Bremmer JP, Mr C P Mather
- Keywords National service, Fear of GIA
The decision
H-MH/11-V3
Heard at Field House
FT (National Service – Fear of GIA) Algeria [2004] UKIAT 00212
On 28 May 2004
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
04 August 2004.
Before:
Mr C P Mather (Vice President)
Mr R Baines JP
Mr D R Bremmer JP
Between
APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
Representation
For the Appellant: Mr D Krushner, Counsel instructed by
Selvarajah & Co.
For the Respondent: Mr P Deller, Home Office Presenting Officer.
DETERMINATION AND REASONS
1. The Appellant is a citizen of Algeria.
2. With permission, he appeals the determination of an Adjudicator (Mr. A.C.B. Markham David) promulgated on 28th April 2003. In that determination the Adjudicator dismissed, on both asylum and human rights grounds, the appeal against the Respondent's decision, made on 1st October 2000 to issue directions for his removal to Algeria following the refusal of his asylum application.
3. This being a very old decision the appeal was under Section 8(4) of the Asylum and Immigration Appeals Act 1993, on refugee grounds only. Although the Adjudicator purported to deal with human rights, he had no jurisdiction to do so.
4. The basis of the Appellant's claim to asylum was that, having been born on 3 March 1975, at the time that he arrived in the United Kingdom (12 September 2000) he was liable to conscription into the Algerian army. He had received threats from terrorists that they would kill him if he did his military service. The Appellant said that the threats came by way of letter but they have not been produced because he burnt them. In his interview and witness statement, the Appellant said his problems first arose around 1998/1999 and that he received is call-up papers in 1999. However when he gave oral evidence to the Adjudicator he said the threats started in 1994 when his brother was killed. His brother was doing his national service, having started in 1992. It is not clear whether the Adjudicator accepted that his brother was killed by the GIA, but he did record that the Appellant said he did not report any threats to the authorities, because friends who had done so had been killed by the GIA.
5. Although the Appellant expressed fear of the authorities as well as the GIA, the Adjudicator concluded that any fear of the authorities was simply that he would be sent to do his national service and therefore be vulnerable to attack by members of the GIA. The Appellant's concern about doing national service as such was not regarded as significant by the Adjudicator who noted that the penalties for evading the draft are a lot less severe than those for desertion. His fear was of the GIA.
6. The Adjudicator noted that then current CIPU Report (May 2002) said that most reports of young men being killed by the GIA for doing their national service happened around 1994 and 1995. The CIPU Report said there were still occasional reports of young men being victim to terrorist attacks having just finished their military service.
7. Quite properly, the Adjudicator said the GIA are non-state actors. He considered the case of Horvath (2000 Imm AR 205) which he quoted. He then found that there is a system of law in place in Algeria making violent attacks by persecutors punishable by sentences commensurate with the gravity of the crimes. He also found that there is a reasonable willingness by the law enforcement agencies to detect, prosecute and punish offenders. He noted that the security situation generally in Algeria had been improving greatly over the last few years and that there is effective security in the big cities. He came to the conclusion that there was a sufficiency of protection.
8. The appellant’s grounds of appeal start by attacking the Adjudicator for having found the Appellant credible. Mr. Krushner said he wished to abandon that ground and distance himself from the author of it.
9. Thereafter the grounds deal with issues arising from the asserted fear of the GIA. The Adjudicator accepted the Appellant had a genuine subjective fear of the GIA arising from the possibility of him doing national service. Mr. Krushner accepted that it was the assessment of the objective evidence which was the key to this appeal. He took us through the objective evidence which consists primarily of the 2003 US State Department Report, published in February 2004, and the current CIPU Report published in April 2004. In making his submissions Mr. Krushner confirmed that military service as such wais not an issue for us to consider. He took us to a number of parts of the US State Department Report. At page 2 it is said:-
"The country is gradually emerging from over a decade of civil strife between proponents and opponents of an Islamic state. During that decade actions by government authorities, insurgents and terrorist groups, some of which have ties to al-Qa'ida, deprived citizens of their fundamental right to security, created serious human rights problems, and set back the country's transition toward a democratic system."
10. A little later on, the Report says that press estimates are that approximately 1,162 civilians, terrorists, and security force members died during 2003, a 61% decrease in violent deaths from 2002. Unfortunately that part of the Report does not distinguish between the component parts of the 1,162. Later in the Report it is said that civilian deaths attributed to terrorists decreased from 1,375 in 2002 to 258 during 2003. The Report suggests that in many cases the victims were randomly targeted in an attempt to create social disorder, although in other cases, there were violent reprisals for failing to pay a "tax" to the terrorists. It notes that the violence appears to have occurred primarily in the countryside "as the security forces largely forced terrorists out of the cities". The Appellant comes from Baraki, a suburb of Algiers. The Report, referring to disappearances, says the government had said in 2001 that it would investigate 4,880 disappearances. It also said that terrorist groups continued to kidnap scores of civilians. And, the general situation among the security forces is improving such that in September 2003 it was announced that 2,269 gendarmes and 211 policemen had been dismissed over the last two years for abuse of authority, including arbitrary arrests. At page 14 of the Report, it is said that the Algerian government maintains the majority of the disappeared have joined terrorist groups, left the country for economic reasons, or been kidnapped and killed by terrorists (again there is no analysis of the numbers, or proportions, as between the different categories). Mr. Krushner suggested that the government's control over the press, and media information, as set out on page 9 of the Report means that government information is unreliable.
11. We observe that the US State Department Report seldom refers to the GIA as such but generally to terrorists. Mr Krushner had to accept there was nothing specifically in the report about the GIA in Algiers. He also had to accept that, although the Report dealt with abuses by the security forces in places, it did not deal with incompetence. He suggested that if the security forces operated in an unlawful way, as it was clear they did from the number of gendarmes and policemen that had been dismissed, then they would be unlikely to be in a position to protect the Appellant. We observe that the government has rid the security forces of a number of their personnel which may mean things are improving as suggested by the report.
12. Mr. Deller concentrated on the CIPU Report and the section under the heading "Armed Groups", starting at 6.39. At 6.40 it is said that the violence in Algeria has generally decreased since the 1990s and that according to the Algerian press, as well as official statistics, the violence blamed on armed Islamic groups declined sharply in 2003. It quotes the US State Department Report as to numbers and to the facts that the violence occurs primarily in the countryside. In particular it deals with a report from the Swedish Immigration Authorities in 2003 (referred to at 6.42). It said
"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. 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 to the difficult years in the 1990s".
Mr. Deller argued that any asserted risk to the Appellant now is pure speculation. Any risk whilst in the military would be a generalised untargeted risk arising from hostility to an opposing army.
13. In the section on the threat to military servicemen from armed groups at 5.111, the CIPU Report says that most newspaper reports about draftees who felt caught between the military authorities and the rebel groups were dated 1994 and 1995. It also mentions that, in April 1999, there were still occasional reports of young men who had just finished their military service being the victims of insurgents. At 5.112 the CIPU Report says it has been claimed that a number of measures taken by the government had diminished Islamist activity and that armed groups mainly launched general attacks against the civilian population in the regions, rather than targeting specific individuals. It then says:-
"A country report of January 2003 by the Netherlands authorities states that 'At present, armed Islamists no longer focus violent actions on the conscripts who have just fulfilled their military service and are returning to society or who are just about to start their military service, contrary to the first year of terror'".
14. There are sections about the GIA at 6.48, and in Annex C, to the CIPU Report. The matters dealt with do not go specifically to the issues in this appeal, save that there is no mention of individual conscripts being targeted.
15. The objective evidence does not deal very well with the question of protection. The US State Department Report deals with past abuses by members of the security forces, but that is both historic and off the point.
16. What is striking is that the objective evidence shows the basis for the Appellant's fear appears to have receded. The objective evidence supports the Appellant in that there were serious problems around 1994/1995 when his brother was killed. But, both the Canadian and Dutch reports now make it clear that the GIA no longer targeting conscripts. Even if they did, the evidence is that they do not have a presence in the larger cities such as Algiers where the Appellant lives.
17. The Appellant has said that he does not fear the authorities as such and he is not pursuing any claim that he fears doing his military service as such. As to the latter, any risk arising during the performance to his service is a generalised, not a targeted risk, which would not bring the Appellant within the Convention.
18. In all the circumstances, the Adjudicator's conclusion was the correct one. There is no real risk of persecution to this Appellant if he is returned to Algeria. His fear no longer has an objectively well-founded basis. The question of protection does not arise.
19. The appeal is dismissed.
C P Mather
Vice President
Approved for electronic distribution.
Algeria/National Service/Fear of GIA
Heard at Field House
FT (National Service – Fear of GIA) Algeria [2004] UKIAT 00212
On 28 May 2004
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
04 August 2004.
Before:
Mr C P Mather (Vice President)
Mr R Baines JP
Mr D R Bremmer JP
Between
APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
Representation
For the Appellant: Mr D Krushner, Counsel instructed by
Selvarajah & Co.
For the Respondent: Mr P Deller, Home Office Presenting Officer.
DETERMINATION AND REASONS
1. The Appellant is a citizen of Algeria.
2. With permission, he appeals the determination of an Adjudicator (Mr. A.C.B. Markham David) promulgated on 28th April 2003. In that determination the Adjudicator dismissed, on both asylum and human rights grounds, the appeal against the Respondent's decision, made on 1st October 2000 to issue directions for his removal to Algeria following the refusal of his asylum application.
3. This being a very old decision the appeal was under Section 8(4) of the Asylum and Immigration Appeals Act 1993, on refugee grounds only. Although the Adjudicator purported to deal with human rights, he had no jurisdiction to do so.
4. The basis of the Appellant's claim to asylum was that, having been born on 3 March 1975, at the time that he arrived in the United Kingdom (12 September 2000) he was liable to conscription into the Algerian army. He had received threats from terrorists that they would kill him if he did his military service. The Appellant said that the threats came by way of letter but they have not been produced because he burnt them. In his interview and witness statement, the Appellant said his problems first arose around 1998/1999 and that he received is call-up papers in 1999. However when he gave oral evidence to the Adjudicator he said the threats started in 1994 when his brother was killed. His brother was doing his national service, having started in 1992. It is not clear whether the Adjudicator accepted that his brother was killed by the GIA, but he did record that the Appellant said he did not report any threats to the authorities, because friends who had done so had been killed by the GIA.
5. Although the Appellant expressed fear of the authorities as well as the GIA, the Adjudicator concluded that any fear of the authorities was simply that he would be sent to do his national service and therefore be vulnerable to attack by members of the GIA. The Appellant's concern about doing national service as such was not regarded as significant by the Adjudicator who noted that the penalties for evading the draft are a lot less severe than those for desertion. His fear was of the GIA.
6. The Adjudicator noted that then current CIPU Report (May 2002) said that most reports of young men being killed by the GIA for doing their national service happened around 1994 and 1995. The CIPU Report said there were still occasional reports of young men being victim to terrorist attacks having just finished their military service.
7. Quite properly, the Adjudicator said the GIA are non-state actors. He considered the case of Horvath (2000 Imm AR 205) which he quoted. He then found that there is a system of law in place in Algeria making violent attacks by persecutors punishable by sentences commensurate with the gravity of the crimes. He also found that there is a reasonable willingness by the law enforcement agencies to detect, prosecute and punish offenders. He noted that the security situation generally in Algeria had been improving greatly over the last few years and that there is effective security in the big cities. He came to the conclusion that there was a sufficiency of protection.
8. The appellant’s grounds of appeal start by attacking the Adjudicator for having found the Appellant credible. Mr. Krushner said he wished to abandon that ground and distance himself from the author of it.
9. Thereafter the grounds deal with issues arising from the asserted fear of the GIA. The Adjudicator accepted the Appellant had a genuine subjective fear of the GIA arising from the possibility of him doing national service. Mr. Krushner accepted that it was the assessment of the objective evidence which was the key to this appeal. He took us through the objective evidence which consists primarily of the 2003 US State Department Report, published in February 2004, and the current CIPU Report published in April 2004. In making his submissions Mr. Krushner confirmed that military service as such wais not an issue for us to consider. He took us to a number of parts of the US State Department Report. At page 2 it is said:-
"The country is gradually emerging from over a decade of civil strife between proponents and opponents of an Islamic state. During that decade actions by government authorities, insurgents and terrorist groups, some of which have ties to al-Qa'ida, deprived citizens of their fundamental right to security, created serious human rights problems, and set back the country's transition toward a democratic system."
10. A little later on, the Report says that press estimates are that approximately 1,162 civilians, terrorists, and security force members died during 2003, a 61% decrease in violent deaths from 2002. Unfortunately that part of the Report does not distinguish between the component parts of the 1,162. Later in the Report it is said that civilian deaths attributed to terrorists decreased from 1,375 in 2002 to 258 during 2003. The Report suggests that in many cases the victims were randomly targeted in an attempt to create social disorder, although in other cases, there were violent reprisals for failing to pay a "tax" to the terrorists. It notes that the violence appears to have occurred primarily in the countryside "as the security forces largely forced terrorists out of the cities". The Appellant comes from Baraki, a suburb of Algiers. The Report, referring to disappearances, says the government had said in 2001 that it would investigate 4,880 disappearances. It also said that terrorist groups continued to kidnap scores of civilians. And, the general situation among the security forces is improving such that in September 2003 it was announced that 2,269 gendarmes and 211 policemen had been dismissed over the last two years for abuse of authority, including arbitrary arrests. At page 14 of the Report, it is said that the Algerian government maintains the majority of the disappeared have joined terrorist groups, left the country for economic reasons, or been kidnapped and killed by terrorists (again there is no analysis of the numbers, or proportions, as between the different categories). Mr. Krushner suggested that the government's control over the press, and media information, as set out on page 9 of the Report means that government information is unreliable.
11. We observe that the US State Department Report seldom refers to the GIA as such but generally to terrorists. Mr Krushner had to accept there was nothing specifically in the report about the GIA in Algiers. He also had to accept that, although the Report dealt with abuses by the security forces in places, it did not deal with incompetence. He suggested that if the security forces operated in an unlawful way, as it was clear they did from the number of gendarmes and policemen that had been dismissed, then they would be unlikely to be in a position to protect the Appellant. We observe that the government has rid the security forces of a number of their personnel which may mean things are improving as suggested by the report.
12. Mr. Deller concentrated on the CIPU Report and the section under the heading "Armed Groups", starting at 6.39. At 6.40 it is said that the violence in Algeria has generally decreased since the 1990s and that according to the Algerian press, as well as official statistics, the violence blamed on armed Islamic groups declined sharply in 2003. It quotes the US State Department Report as to numbers and to the facts that the violence occurs primarily in the countryside. In particular it deals with a report from the Swedish Immigration Authorities in 2003 (referred to at 6.42). It said
"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. 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 to the difficult years in the 1990s".
Mr. Deller argued that any asserted risk to the Appellant now is pure speculation. Any risk whilst in the military would be a generalised untargeted risk arising from hostility to an opposing army.
13. In the section on the threat to military servicemen from armed groups at 5.111, the CIPU Report says that most newspaper reports about draftees who felt caught between the military authorities and the rebel groups were dated 1994 and 1995. It also mentions that, in April 1999, there were still occasional reports of young men who had just finished their military service being the victims of insurgents. At 5.112 the CIPU Report says it has been claimed that a number of measures taken by the government had diminished Islamist activity and that armed groups mainly launched general attacks against the civilian population in the regions, rather than targeting specific individuals. It then says:-
"A country report of January 2003 by the Netherlands authorities states that 'At present, armed Islamists no longer focus violent actions on the conscripts who have just fulfilled their military service and are returning to society or who are just about to start their military service, contrary to the first year of terror'".
14. There are sections about the GIA at 6.48, and in Annex C, to the CIPU Report. The matters dealt with do not go specifically to the issues in this appeal, save that there is no mention of individual conscripts being targeted.
15. The objective evidence does not deal very well with the question of protection. The US State Department Report deals with past abuses by members of the security forces, but that is both historic and off the point.
16. What is striking is that the objective evidence shows the basis for the Appellant's fear appears to have receded. The objective evidence supports the Appellant in that there were serious problems around 1994/1995 when his brother was killed. But, both the Canadian and Dutch reports now make it clear that the GIA no longer targeting conscripts. Even if they did, the evidence is that they do not have a presence in the larger cities such as Algiers where the Appellant lives.
17. The Appellant has said that he does not fear the authorities as such and he is not pursuing any claim that he fears doing his military service as such. As to the latter, any risk arising during the performance to his service is a generalised, not a targeted risk, which would not bring the Appellant within the Convention.
18. In all the circumstances, the Adjudicator's conclusion was the correct one. There is no real risk of persecution to this Appellant if he is returned to Algeria. His fear no longer has an objectively well-founded basis. The question of protection does not arise.
19. The appeal is dismissed.
C P Mather
Vice President
Approved for electronic distribution.
Algeria/National Service/Fear of GIA