[2002] UKIAT 1973
- Case title: HOY (Risk, Terrorism)
- Appellant name: HOY
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Algeria
- Judges: Mr K Drabu, Mrs M Roe, Ms S S Ramsumair JP
- Case Notes: This case was removed from the Country Guidance list on 14.12.04
- Keywords Risk, Terrorism
The decision
ar HO-Y (Risk-Terrorism) Algeria CG [2002] UKIAT 01973 CC17408-01
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing: 18 February 2002
Date of Determination notified:
14 06 02
Before:
Mr K Drabu (Chairman)
Mrs M L Roe
Ms S S Ramsumair
HOCINE OULD-YAHIA
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
Representation
For the appellant : Ms R. Baruah of counsel, instructed by Tuckers
For the respondent : Mr R. Holmes, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant, a citizen of Algeria, arrived in the United Kingdom on 31 May 1999 and claimed asylum four lays later. His claim to asylum was refused for reasons set out in a letter from the respondent dated 2 February 2001. The appellant appealed on grounds that his removal would be in breach of the UK government objectives under the UN Convention and it would also infringe his fundamental human rights as granted by the by the European Convention on Human Rights 1950. An Adjudicator (Mr M. Neuberger) heard the appeal on 10 September 2001 and for reasons given in his written determination promulgated on 10 October 2001, his dismissed the appeal. Leave to appeal to the Tribunal was granted (Mr A.R. Mackey, Vice President).
2. The appellant is a qualified accountant. He lived and studied in France until 1994 when he returned to Algeria to join his father in his business of trading in electrical materials. The problems that led him to leave ultimately to leave Algeria to seek refuge elsewhere started in 1997. In January 1997 one of the shops belonging to the family was burgled at a time when a curfew was in place. The family suspected the authorities of the burglary but reported it to the police anyway. The police showed no interest and two months asked the appellant to sign some papers in agreement of closing the case. The appellant complied as he did not feel he had any choice. Three months later while he and his brother were driving the police follow them, ordered them out of their car and assaulted his brother, abused them and called them terrorists. The brother needed hospital treatment for the assault. After this episode the house of the appellant was raided on a number of occasions and the appellant was harassed, intimidated, arrested and detained on two separate occasions – once for three days and once for fifteen days. He was accused of being a terrorist. In December 1999 the family home was raided again and the appellant was taken to the police station when he was questioned and accused of being a terrorist. He was badly beaten and kept in custody for two weeks. He was then released only on condition that he reported daily to the police station. The appellant left the area to stay with relatives in as place 300 Km from his home in Algiers. Whilst he was there he was informed that the police had called at his house and had been looking for him. The appellant felt that is life was not safe in Algeria and he travelled as a stowaway on board a cargo ship to France from where he came to the United Kingdom. Since his arrival in the UK he has been informed that the authorities had closed down the family shop without giving any reasons. In his oral evidence before the Adjudicator the appellant confirmed that he had not engaged in any political activity in Algeria and that he had never been a member of a terrorist or any armed group. he said that he was a Berber by ethnicity and it was common knowledge that the authorities did not like the Berbers. He told the Adjudicator that he had only stayed in France for two days on his way to the UK and had not applied for asylum there as he believed he did not stand a chance of making a successful claim there. He said that in Algeria the police were looking for him and had been to his family home twice and had left a warrant for his arrest. He said that he had been listed as a terrorist and he fears that his name would be on a central computer and circularised throughout the country.
3. The Adjudicator in his determination said that he accepted that the appellant ‘has in the main told a credible story.’ Despite hearing argument from the appellant's representatives that the Convention reason in this case was political opinion which they had imputed to the appellant, the Adjudicator held that the claims did not engage any of the reasons set out in the Convention. He gave no reasons for this conclusion. He also considered that the appellant had been the victim of local police and his problems do not form part of the deliberate policy of persecution by the authorities but a consequence of lack of discipline on the part of the police. He concluded that the appellant could relocate within Algeria and ‘rebuild his life without any difficulty from the authorities’. The Adjudicator was not impressed by the documents which showed that the appellant was being sought by the authorities. He disregarded these saying they ‘do not appear to be valid documents’.
4. By the time the matter came up before us, the appellant had obtained a detailed report from Dr E.G.H. Joffe. The report is dated 5 November 2001. It states that he has never met the appellant and that he has made comments on the general background which the appellant claims and made with regard to the appellant's claiming about police harassment, intimidation , arrests, detention and ill-treatment, Dr Joffe says they ‘corresponds to an objective reality’ on the issue of internal relocating. Dr Joffe says ‘There is absolutely no way in which Mr Ould-Yahia could relocate inside Algeria without this being known by the police service and its local operatives, wherever he might reside. If he has been accused of …… with terrorists – rightly or wrongly - he will immediately be treated by local police units as suspect. Thus the treatment he fled to avoid will be recommenced. If he fled an order to report regularly to the public, he faces arrest and imprisonment as a terrorists suspect.’
‘Mr Ould Yahia originally fled from Algeria illegally and has, I understand, no passport. This means that travel documents will have to be obtained from him from the Algerian embassy in London. It is now standard practice for the embassy to refer such requests back to Algiers where the security services, upon vetting the request for Mr Ould Yahia, will be able to establish his past record. He will therefore be detained upon return at Algiers airport. Furthermore, if he is now returned to Algeria, he is also likely to face interrogation upon arrival because of his prolonged absence from the country, quite apart from any specific offence he may have committed that might have been identified by the security authorities before his return. This may well also involve detention by the security authorities at the airport who are always concerned that persons who have been abroad for prolonged periods without appropriate permission or visas may be connected with the Algerian Islamist movements aboard. He can be held on remand (garde a vue or mandat de depot) for up to ten days before he would see a magistrate. However, the security forces often arbitrarily extend this period and the close links between them and the judiciary mean that such extensions will not be questioned by a magistrate.
Whilst being interrogated on remand he will face the distinct possibility of severe ill-treatment, partly because, as explained above, such behaviour is typical of the police and security forces in Algeria and because of official anxiety about the external dimension of the political crisis that Algeria has faced for the past decade. His interrogators may well assume that he has been in contact with Islamist opponents of the regime abroad and will seek to obtain such information about him. In the current circumstances, in the wake of the incidents in New York, they may also seek information over wider terrorist connections – which he will not have – but which the Algerian authorities now argue, quite spuriously, lie behind their own difficulties. On September 20, 2001, the Algerian government passed to the United States authorities a list of 350 Algerians they claimed had such links and a further set of lists of known anti-regime activists in an attempt to tie Algeria’s domestic problems into the wider terrorist picture that is emerging. If Mr Ould Yahia survives this initial set of interrogations – there is evidence of maltreatment during those interrogations, as admitted by the German government – and he must then face the very real danger that, upon release, the local police may decide to complete the task that had been left undone by his departure. Given the modern systems of communication enjoyed currently by the police and gendarmerie services, he will not be safe from vengeance, even if he does not return to his original place of residence. Mr Ould Yahia’s outlook, if he is returned to Algeria, will not be good. He will face a prison sentence in accordance with the provisions of the Algerian penal code because of his illegal absence from the country and because of his failure to maintain his reporting requirements to the police. Given past practice, such a sentence could range from between one to five years in prison.’
5. When we convened to hear the appeal we asked Mr Holmes, Home Office Presenting Officer, to address us first. He asked that the appeal be allowed but only to the extent that it will be reheard by another Adjudicator. We asked him why. He said that there were ‘fundamental flaws’ in the determination of Mr Neuberger. According to Mr Holmes the Adjudicator had made a bland association of positive credibility but had given no reasons for accepting the appellant's story. He also said that on the issue of Convention reason or the lack of it as the Adjudicator had found in the case the Adjudicator had failed to make relevant findings of fact.
We asked the Home Office Presenting Officer what he had to say about the contents of the report from Dr Joffe. He said that the report had not reached him until 5 February. He conceded that Dr Joffe is very knowledgeable and his reports have received favourable comment from the Tribunal in Said. He said what weight we gave to the report was a matter for us but in his view the appeal merited dismissal.
6. We do not intend to set out the arguments of Ms Baruah at length. We found them persuasive and announced our intention to allow this appeal. We now give our reasons for doing so.
7. The appellant is a single young man who received professional education in France and returned to Algeria to go in the family business. His difficulties with the authorities started in 1997 and with time became worse. His version of events was accepted by the Adjudicator before whom he gave oral evidence. As Miss Baruah said, the only reservation that the Adjudicator appear to have about the claim of the appellant was about the “validity” of the two documents he had produced. We see no merit or justification in the argument advanced by Mr Holmes that as the basis of the Adjudicator's positive credibility findings have not been explained, we should find the determination “fundamentally flawed” and direct a fresh hearing. In our view the positive credibility findings in this case were well justified. The claims of the appellant have been consistent and coherent and wholly plausible in the context of the objective evidence. In our opinion, where the Adjudicator went wrong is that he failed to address the issue of political opinion. He accepted that the appellant was accused of being a terrorist by the police and yet concluded that there was no Convention reason in the case. In the decision to grant leave in this case the Tribunal said “this conclusion seems somewhat perverse given the apparently accepted evidence that the appellant had been accused of being a terrorist by the police (clearly a political opinion)”. In our opinion the conclusion was clearly wrong in law and on facts. We give due weight to the opinions of Dr Joffe who the Tribunal describes in its decision in Saidi (00/TH/02757) as an acknowledge authority in relation to North African affairs with particular specialisation on Algeria. In this case, unlike that of Saidi, there is no conflict between the objective evidence that is relevant to the fact of this case with that of the opinions given by Dr Joffe in his report. There was no challenge to the report of Dr Joffe by Mr Holmes. He, quite properly accepted that the opinions expressed by the report were opinions of the acknowledged expert which should be given due weight. And we have. In so doing we have noted that his opinions were not accepted in the case of Saidi but in our view the facts of Saidi were entirely different and there was clear conflict in the views expressed in other evidence. Putting Dr Joffe’s report in balance with the evidence of the appellant which was found credible by the Adjudicator, the conclusion that there is a reasonable likelihood that the appellant will face persecution for a Convention reason on return is meritable. The appellant is at serious risk of detention for an indefinite period and torture on return because he left Algeria in breach of the reporting conditions imposed upon him following detention or allegation of being a terrorist. He was persecuted and tortured while he was in Algeria. Applying the Demirkaya principle and noting that the relevant objective conditions as per all the objective evidence including that of Dr Joffe establishes that remain of grave concern, we find that the appellant is in need of international protection. Internal relocation is just not possible on the facts of this case. In our judgment the removal of the appellant to Algeria would be in breach of the UK government’s obligations under the 1951 Refugee Convention. In the circumstances we do not see any need to consider the appellant's claim under the human rights aspect. Indeed we were not asked to.
8. For the above reasons the appeal is allowed.
K. Drabu
Vice President
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing: 18 February 2002
Date of Determination notified:
14 06 02
Before:
Mr K Drabu (Chairman)
Mrs M L Roe
Ms S S Ramsumair
HOCINE OULD-YAHIA
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
Representation
For the appellant : Ms R. Baruah of counsel, instructed by Tuckers
For the respondent : Mr R. Holmes, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant, a citizen of Algeria, arrived in the United Kingdom on 31 May 1999 and claimed asylum four lays later. His claim to asylum was refused for reasons set out in a letter from the respondent dated 2 February 2001. The appellant appealed on grounds that his removal would be in breach of the UK government objectives under the UN Convention and it would also infringe his fundamental human rights as granted by the by the European Convention on Human Rights 1950. An Adjudicator (Mr M. Neuberger) heard the appeal on 10 September 2001 and for reasons given in his written determination promulgated on 10 October 2001, his dismissed the appeal. Leave to appeal to the Tribunal was granted (Mr A.R. Mackey, Vice President).
2. The appellant is a qualified accountant. He lived and studied in France until 1994 when he returned to Algeria to join his father in his business of trading in electrical materials. The problems that led him to leave ultimately to leave Algeria to seek refuge elsewhere started in 1997. In January 1997 one of the shops belonging to the family was burgled at a time when a curfew was in place. The family suspected the authorities of the burglary but reported it to the police anyway. The police showed no interest and two months asked the appellant to sign some papers in agreement of closing the case. The appellant complied as he did not feel he had any choice. Three months later while he and his brother were driving the police follow them, ordered them out of their car and assaulted his brother, abused them and called them terrorists. The brother needed hospital treatment for the assault. After this episode the house of the appellant was raided on a number of occasions and the appellant was harassed, intimidated, arrested and detained on two separate occasions – once for three days and once for fifteen days. He was accused of being a terrorist. In December 1999 the family home was raided again and the appellant was taken to the police station when he was questioned and accused of being a terrorist. He was badly beaten and kept in custody for two weeks. He was then released only on condition that he reported daily to the police station. The appellant left the area to stay with relatives in as place 300 Km from his home in Algiers. Whilst he was there he was informed that the police had called at his house and had been looking for him. The appellant felt that is life was not safe in Algeria and he travelled as a stowaway on board a cargo ship to France from where he came to the United Kingdom. Since his arrival in the UK he has been informed that the authorities had closed down the family shop without giving any reasons. In his oral evidence before the Adjudicator the appellant confirmed that he had not engaged in any political activity in Algeria and that he had never been a member of a terrorist or any armed group. he said that he was a Berber by ethnicity and it was common knowledge that the authorities did not like the Berbers. He told the Adjudicator that he had only stayed in France for two days on his way to the UK and had not applied for asylum there as he believed he did not stand a chance of making a successful claim there. He said that in Algeria the police were looking for him and had been to his family home twice and had left a warrant for his arrest. He said that he had been listed as a terrorist and he fears that his name would be on a central computer and circularised throughout the country.
3. The Adjudicator in his determination said that he accepted that the appellant ‘has in the main told a credible story.’ Despite hearing argument from the appellant's representatives that the Convention reason in this case was political opinion which they had imputed to the appellant, the Adjudicator held that the claims did not engage any of the reasons set out in the Convention. He gave no reasons for this conclusion. He also considered that the appellant had been the victim of local police and his problems do not form part of the deliberate policy of persecution by the authorities but a consequence of lack of discipline on the part of the police. He concluded that the appellant could relocate within Algeria and ‘rebuild his life without any difficulty from the authorities’. The Adjudicator was not impressed by the documents which showed that the appellant was being sought by the authorities. He disregarded these saying they ‘do not appear to be valid documents’.
4. By the time the matter came up before us, the appellant had obtained a detailed report from Dr E.G.H. Joffe. The report is dated 5 November 2001. It states that he has never met the appellant and that he has made comments on the general background which the appellant claims and made with regard to the appellant's claiming about police harassment, intimidation , arrests, detention and ill-treatment, Dr Joffe says they ‘corresponds to an objective reality’ on the issue of internal relocating. Dr Joffe says ‘There is absolutely no way in which Mr Ould-Yahia could relocate inside Algeria without this being known by the police service and its local operatives, wherever he might reside. If he has been accused of …… with terrorists – rightly or wrongly - he will immediately be treated by local police units as suspect. Thus the treatment he fled to avoid will be recommenced. If he fled an order to report regularly to the public, he faces arrest and imprisonment as a terrorists suspect.’
‘Mr Ould Yahia originally fled from Algeria illegally and has, I understand, no passport. This means that travel documents will have to be obtained from him from the Algerian embassy in London. It is now standard practice for the embassy to refer such requests back to Algiers where the security services, upon vetting the request for Mr Ould Yahia, will be able to establish his past record. He will therefore be detained upon return at Algiers airport. Furthermore, if he is now returned to Algeria, he is also likely to face interrogation upon arrival because of his prolonged absence from the country, quite apart from any specific offence he may have committed that might have been identified by the security authorities before his return. This may well also involve detention by the security authorities at the airport who are always concerned that persons who have been abroad for prolonged periods without appropriate permission or visas may be connected with the Algerian Islamist movements aboard. He can be held on remand (garde a vue or mandat de depot) for up to ten days before he would see a magistrate. However, the security forces often arbitrarily extend this period and the close links between them and the judiciary mean that such extensions will not be questioned by a magistrate.
Whilst being interrogated on remand he will face the distinct possibility of severe ill-treatment, partly because, as explained above, such behaviour is typical of the police and security forces in Algeria and because of official anxiety about the external dimension of the political crisis that Algeria has faced for the past decade. His interrogators may well assume that he has been in contact with Islamist opponents of the regime abroad and will seek to obtain such information about him. In the current circumstances, in the wake of the incidents in New York, they may also seek information over wider terrorist connections – which he will not have – but which the Algerian authorities now argue, quite spuriously, lie behind their own difficulties. On September 20, 2001, the Algerian government passed to the United States authorities a list of 350 Algerians they claimed had such links and a further set of lists of known anti-regime activists in an attempt to tie Algeria’s domestic problems into the wider terrorist picture that is emerging. If Mr Ould Yahia survives this initial set of interrogations – there is evidence of maltreatment during those interrogations, as admitted by the German government – and he must then face the very real danger that, upon release, the local police may decide to complete the task that had been left undone by his departure. Given the modern systems of communication enjoyed currently by the police and gendarmerie services, he will not be safe from vengeance, even if he does not return to his original place of residence. Mr Ould Yahia’s outlook, if he is returned to Algeria, will not be good. He will face a prison sentence in accordance with the provisions of the Algerian penal code because of his illegal absence from the country and because of his failure to maintain his reporting requirements to the police. Given past practice, such a sentence could range from between one to five years in prison.’
5. When we convened to hear the appeal we asked Mr Holmes, Home Office Presenting Officer, to address us first. He asked that the appeal be allowed but only to the extent that it will be reheard by another Adjudicator. We asked him why. He said that there were ‘fundamental flaws’ in the determination of Mr Neuberger. According to Mr Holmes the Adjudicator had made a bland association of positive credibility but had given no reasons for accepting the appellant's story. He also said that on the issue of Convention reason or the lack of it as the Adjudicator had found in the case the Adjudicator had failed to make relevant findings of fact.
We asked the Home Office Presenting Officer what he had to say about the contents of the report from Dr Joffe. He said that the report had not reached him until 5 February. He conceded that Dr Joffe is very knowledgeable and his reports have received favourable comment from the Tribunal in Said. He said what weight we gave to the report was a matter for us but in his view the appeal merited dismissal.
6. We do not intend to set out the arguments of Ms Baruah at length. We found them persuasive and announced our intention to allow this appeal. We now give our reasons for doing so.
7. The appellant is a single young man who received professional education in France and returned to Algeria to go in the family business. His difficulties with the authorities started in 1997 and with time became worse. His version of events was accepted by the Adjudicator before whom he gave oral evidence. As Miss Baruah said, the only reservation that the Adjudicator appear to have about the claim of the appellant was about the “validity” of the two documents he had produced. We see no merit or justification in the argument advanced by Mr Holmes that as the basis of the Adjudicator's positive credibility findings have not been explained, we should find the determination “fundamentally flawed” and direct a fresh hearing. In our view the positive credibility findings in this case were well justified. The claims of the appellant have been consistent and coherent and wholly plausible in the context of the objective evidence. In our opinion, where the Adjudicator went wrong is that he failed to address the issue of political opinion. He accepted that the appellant was accused of being a terrorist by the police and yet concluded that there was no Convention reason in the case. In the decision to grant leave in this case the Tribunal said “this conclusion seems somewhat perverse given the apparently accepted evidence that the appellant had been accused of being a terrorist by the police (clearly a political opinion)”. In our opinion the conclusion was clearly wrong in law and on facts. We give due weight to the opinions of Dr Joffe who the Tribunal describes in its decision in Saidi (00/TH/02757) as an acknowledge authority in relation to North African affairs with particular specialisation on Algeria. In this case, unlike that of Saidi, there is no conflict between the objective evidence that is relevant to the fact of this case with that of the opinions given by Dr Joffe in his report. There was no challenge to the report of Dr Joffe by Mr Holmes. He, quite properly accepted that the opinions expressed by the report were opinions of the acknowledged expert which should be given due weight. And we have. In so doing we have noted that his opinions were not accepted in the case of Saidi but in our view the facts of Saidi were entirely different and there was clear conflict in the views expressed in other evidence. Putting Dr Joffe’s report in balance with the evidence of the appellant which was found credible by the Adjudicator, the conclusion that there is a reasonable likelihood that the appellant will face persecution for a Convention reason on return is meritable. The appellant is at serious risk of detention for an indefinite period and torture on return because he left Algeria in breach of the reporting conditions imposed upon him following detention or allegation of being a terrorist. He was persecuted and tortured while he was in Algeria. Applying the Demirkaya principle and noting that the relevant objective conditions as per all the objective evidence including that of Dr Joffe establishes that remain of grave concern, we find that the appellant is in need of international protection. Internal relocation is just not possible on the facts of this case. In our judgment the removal of the appellant to Algeria would be in breach of the UK government’s obligations under the 1951 Refugee Convention. In the circumstances we do not see any need to consider the appellant's claim under the human rights aspect. Indeed we were not asked to.
8. For the above reasons the appeal is allowed.
K. Drabu
Vice President