Nenni v Secretary of State for the Home Department

LORD JUSTICE PETER GIBSON: I will ask Lord Justice Keene to deliver the first judgment.

LORD JUSTICE KEENE: This is an appeal against the decision of the Immigration Appeal Tribunal ("the IAT") notified on 11th November 2003, whereby the IAT dismissed this appellant's appeal against a decision of an adjudicator promulgated on 17th March 2003. The adjudicator had dismissed the appellant's asylum and human rights appeals.

The appellant is a citizen of Algeria of Berber ethnicity. He arrived in the United Kingdom in February 1998 from France, being at that time aged 28. Before the adjudicator he gave an account of his experiences in Algeria. Only part of that account was accepted by the adjudicator as likely to be true, and those findings by the adjudicator are no longer challenged. I summarise therefore only that part which was accepted by the adjudicator.

The appellant did his military service in Algeria from 1992 to 1994 and then returned to civilian life working in a supermarket in Algiers. In June 1995 the army barracks where he had been stationed was attacked by terrorists. In the course of the investigation by the authorities into this incident, the appellant was arrested, detained and questioned. Again in January 1996, after a bomb explosion at a nearby bus station, he was arrested and detained. The adjudicator accepted that on these two occasions the appellant was detained in poor conditions and treated roughly, perhaps including some physical violence. The appellant's own evidence was that he did not suffer any physical injury, but the adjudicator accepted that these experiences caused him considerable distress and that he was extremely anxious about returning to Algeria.

On the first occasion when he was detained, that of June 1995, the appellant was detained for about ten days and then released without charge. The detention in January 1996 lasted some two weeks. Again he was released at the end of that time by the authorities. Again he was not charged with any offence, but he was required to report to the Gendarmerie at fortnightly intervals. When reporting he was treated, as the adjudicator found, to verbal abuse.

It seems that in 1997 he became depressed and stopped reporting to the police. He then went to stay at a friend's house where he remained for nine or ten months. During that time he worked in his friend's coffee shop for about three months. The adjudicator did not accept that the appellant was in hiding during this time and there was no indication that he had any difficulties with the authorities during this period.

In considering the issue of the risk to the appellant if returned to Algeria, the adjudicator referred to the various items of objective evidence put before him about the situation in Algeria, including the October 2002 CIPU report and the UNHCR guidelines. In the light of those documents, the adjudicator said this:

Thus the adjudicator concluded from all this evidence that the appellant did not have a well-founded fear of persecution if returned, nor any basis for a claim under Article 3 of the European Convention on Human Rights.

It is clear that the adjudicator found that on the two occasions when he was arrested, the appellant had not been specifically targeted, but had been rounded up in a "more generalised investigation into terrorist incidents."

Before the IAT the appellant's representative stressed the ill-treatment received during the two periods of detention, and indeed the IAT accepted that this treatment did attain a minimum level of severity involving physical and mental suffering amounting to a breach of Article 3 of the ECHR. It regarded that past treatment as a relevant factor to be taken into account.

The IAT then identified the issue as being whether there was a real risk of such treatment being repeated if the appellant were to be returned. The Tribunal accepted that there might be such a risk if he were perceived by the authorities as connected with the GIA (the Groupe Islamique Armé), an armed group responsible for many deaths in Algeria. The IAT reminded itself of the decision in Demirkaya v Secretary of State for the Home Department [1999] INLR 441, where this court referred to past experience of a claimant being probative of future risk unless there has been a significant change in circumstances. But the Tribunal concluded that it was open to the adjudicator to conclude that the appellant would not now be regarded by the authorities in Algeria as having any connection with the GIA.

In coming to that conclusion the IAT relied on the fact that the appellant had never been charged with any offence, that he had been rounded up in a generalised investigation into terrorist incidents, that he had been released by the authorities and that he had continued to live in Algeria for a number of months before leaving for France. The IAT said that there was considerable strength in the Secretary of State's submission that:

The appellant now submits that the IAT erred in law in the approach which it adopted. Mr Henderson, who appears on his behalf, relies heavily on the decision in Demirkaya, combined with the Tribunal's finding here that the past treatment of the appellant amounted to a breach of Article 3, even if towards the lower end of the scale. Yet the IAT did not identify any major change of circumstances in the situation in Algeria. Mr Henderson argues that the arrest and detention of the appellant twice in the past shows that he was suspected of involvement with the GIA, or at least of being a sympathiser, and that the background evidence shows, as the Tribunal accepted, that known sympathisers with the GIA may have a well-founded fear of persecution. Mr Henderson argues that nothing shows that the adjudicator rejected the appellant's account of having been arrested at home, so that he was not part of some random round-up. Nor was he unconditionally released.

It is also submitted that the appellant may well be at risk because he absconded whilst subject to reporting requirements. The mere fact that the appellant lived and worked for some months in another part of Algiers without being discovered does not indicate, it is said, that the authorities were not interested in him. They were sufficiently interested in the past to detain and subject him to Article 3 ill-treatment. So if he is now sent back and questioned on return, the checks carried out would be likely to reveal that he had breached his reporting condition.

Mr Henderson contends that in Article 3 cases the discretionary area of judgment is a very narrow one, and so the court should be prepared to intervene on more than just Wednesbury grounds. He cites R v Secretary of State for the Home Department ex parte Turgut [2001] 1 All ER 719 and a number of other authorities in support of that proposition.

In the written argument submitted on behalf of the Secretary of State Mr Grodzinski submits that the decision in Demirkaya should not be regarded as laying down any absolute principle of law about the probative effect of past persecution. That decision simply recognised, it is said, the evidential value of such persecution when considering future risk. The Secretary of State emphasises that the adjudicator found that the appellant had been detained as part of a generalised round-up, following in each case a recent terrorist incident. The IAT, it is argued, was right to attach weight to the appellant's release without charge because he would not have been released if the authorities had any real evidence of his involvement with the GIA.

Moreover, it is argued that the IAT was entitled to draw the inference that far worse treatment could have been expected if the authorities had been in possession of evidence demonstrating a link with the GIA and that the level of treatment in fact suffered, albeit that it crossed the Article 3 threshold, was consistent with the adjudicator's conclusion that the appellant had been detained as part of a generalised round-up.

As for the argument based on the appellant's absconding and breach of the reporting requirement, Mr Grodzinski contends that it is important that for a number of months, perhaps nine or ten months, the appellant was able to live with a friend and for around three months to work in the friend's coffee shop with no apparent problems. It is contended that is hardly consistent with a continuing interest on the part of the authorities, whether due to a failure to report or for any other reason, or indeed indicative of a fear on the appellant's part of there being such an interest.

I propose to deal first with this court's role in such cases when dealing with an appeal from the IAT. It is to be borne in mind that the appeal to this court lies only on a point of law and that we are considering whether the IAT has made an error of law, not whether the Secretary of State's original decision was one properly open to him. I put it like that because some of the passages relied on by Mr Henderson, for example that from Turgut about the narrow discretionary area of judgment, are dealing with a court's approach when asked to judicially review a ministerial decision. That is not the position in this case, which is not a judicial review case but one which is concerned with a statutory appeal. Of course I accept that in all asylum cases and in all cases where Article 3 issues are involved, the court must be very conscious of the dreadful harm which may result if a wrong decision is made and a claimant is sent back to his country in error. In that sense all these cases require most anxious scrutiny. But that does not enable this court to intervene unless an error of law by the IAT can be demonstrated.

It is convenient to turn next to this court's decision in Demirkaya, so that there is no doubt about the correct legal approach to be adopted. The facts of that case demonstrated far more severe past treatment of the appellant than occurred in the present case. But that does not affect the legal principles to be applied, save to the extent that the more severe the treatment in the past the more appropriate it may be to draw the inference that the authorities in the country in question had, and still have, a definite interest in the individual. But what the court had to deal with in Demirkaya was a situation where the appellant had suffered horrifying and life-threatening treatment at the hands of the Turkish political police and yet no reference had been made to that past treatment in the IAT's decision. Stuart-Smith LJ (with whose judgment the other members of the court agreed) said this at page 449A-D:

From that passage it is quite clear that Stuart-Smith LJ was not seeking to lay down any proposition of law that past ill-treatment or persecution must be taken to show that a fear of future ill-treatment or persecution is well-founded unless there has been a significant change in circumstances. He did not express himself in such categoric terms, and any proposition of the kind I have just described would in any event run counter to the decision in Adan. What was being said in Demirkaya was that past persecution has a probative value on the issue of whether there is a well-founded fear if returned, and that the adjudicator or Tribunal must explain in a case where such evidence does not lead to a conclusion in favour of the claimant why such a conclusion has not been reached. The explanation may lie in some change in the regime or the political situation in the country in question, but it cannot be confined to that, as Mr Henderson conceded in argument. One is dealing here with facts from which an inference of future persecution or ill-treatment may be drawn. But inevitably that means that other facts may entitle the decision-maker not to draw that inference. What has happened to the claimant in his home country since the persecution or ill-treatment may, for example, be relevant. I entirely accept that past persecution is highly relevant, and in some cases may be determinative, but it is not automatic that, because there has been past ill-treatment, a well-founded fear of persecution or of Article 3 ill-treatment is established. The decision-maker must look at all the relevant circumstances and explain his decision.

With that approach in mind I turn to the facts in the present case and to the decisions made below. It is beyond doubt that, unlike in Demirkaya, both adjudicator and the IAT in the present case had the past ill-treatment of the appellant very much in mind. They refer to it and they set out the considerations which led them nonetheless to conclude that the appellant would not be at risk in any real sense if returned to Algeria. Those matters can be summarised as being:

All those considerations seem to me to be relevant and proper matters for the IAT to have taken into account, alongside the past ill-treatment itself, when assessing whether a real risk to the appellant existed if he were now to be returned to Algeria.

The last of those matters to which I have referred seems to me to be particularly pertinent and is indeed part of a larger point, namely that the later of the two periods of detention took place in January 1996 and yet the appellant remained in Algiers for two years before leaving. It is true that for some of that time he was reporting to the police and was verbally abused, but he suffered nothing during the whole of that period that would amount to persecution or to Article 3 ill-treatment. The nine or ten months after he ceased reporting is significant, because of the lack of any interest being expressed in him by the authorities even though he was not in hiding. That passage of time and the attitude off the authorities towards him during it were, in my judgment, factors which could properly lead the IAT to conclude that, despite past ill-treatment, there was not a real risk of persecution or Article 3 ill-treatment if he were now returned to Algeria. Such factors can come within the decision-making framework indicated in Demirkaya.

Moreover, the IAT was entitled to regard that evidence as indicating that the appellant's breach of his reporting requirement would not now give rise to any real risk to him on return. It was open to the Tribunal to conclude that the appellant was not of current interest to the authorities.

I conclude, for my part, that the IAT did not adopt the wrong approach in law to the issues which they had to determine, nor was its conclusion on those issues an irrational one. I can see no error of law in its decision. For that reason I would dismiss this appeal.

LORD JUSTICE MAURICE KAY: I agree.

LORD JUSTICE PETER GIBSON: I also agree.