Benghellab v Secretary of State for the Home Department

LORD JUSTICE MOSES: This is a renewed application for permission to appeal following refusal in writing by Lord Justice Auld.

The issue, after the chequered history of this matter, was whether the claimant from Algeria could return - without danger to him - to areas of Algeria where he would not be under threat. The adjudicator had originally determined that there was no risk of persecution and that the rights of this claimant under the European Convention on Human Rights were not at risk. He failed to deal with internal relocation.

The Immigration Appeal Tribunal gave permission to appeal. They heard the appeal and remitted the matter to the same adjudicator for consideration of internal flight in two respects: whether he would receive adequate protection in certain areas, and, secondly, where it was not unduly harsh for him to go.

The adjudicator considered submissions, on the one hand, from the Home Office contending that it was safe for him to go to certain areas of Algeria based on a CIPU Report. Mr Bazini, who appears before me, and who has striven wholly properly and with concern on behalf of this claimant throughout, relied on an expert report from Mr Joffé. Mr Joffé spoke of the continuing dangers from infiltration of police forces by terrorist groups. The rival submissions are set out in the adjudicator's decision. However the adjudicator's conclusion which favoured the Joffé report, or relied upon the Joffé report, merely recites again his positive findings on credibility, and continues:

But the reason why he rejected what was contended in reliance on the CIPU Report and relied instead on the Joffé report is wholly opaque. No reasoning was given whatever.

It was therefore not surprising that the Secretary of State appealed again - the second appeal - to the Immigration Appeal Tribunal. The Immigration Appeal Tribunal took the view that the decision of the adjudicator lacked any cogent reasoning and therefore decided that there was an error of law. The Immigration Appeal Tribunal then went on itself to consider the reports: the CIPU Report and Mr Joffé's report. Having regard to the absence of reliable sources on which the Joffé report was based and other material matters, it rejected what was said in the Joffé report and took the view that it would be safe for the claimant to return.

The gravamen of this appeal advanced clearly by Mr Bazini is that there was, in reality, no conflict between the Joffé report and the CIPU Report. On a proper reading of the CIPU report, particularly paragraphs 6.25 and 6.26 at page 27 of some bundle but it never appeared before me, CIPU accepted the possibility of the persisting existence of some networks and of sporadic attacks in the area where the claimant had previously lived. So, it is contended, the Immigration Appeal Tribunal was wrong to regard there being a conflict since the CIPU Report accepted the possibility of danger still persisting throughout Algeria. Indeed, the reality is - so it is contended - that, looked at overall, the CIPU Report could never exclude a real danger since it could never apply to specific situations throughout Algeria. All that the Joffé report - and, for example, private sources of newspaper reports confirmed - shows is specific dangers not excluded by the CIPU report. There was, therefore, no conflict to be resolved and it was perfectly open to the adjudicator to rely on more specific information in the Joffé report.

In those circumstances it was contended that the Immigration Appeal Tribunal was wrong to allow the appeal and was wrong to go on to determine the matter by itself.

I reject these submissions. I do not believe there is any real prospect of successfully arguing the contrary. The reasoning of the adjudicator is, in my view, non-existent. If the adjudicator had wanted to say that there was, in, reality, no conflict but the Joffé report disclosed information that was more specific and not excluded by the CIPU report, he could have said so in a matter of sentences. But he said nothing of the sort. He was completely silent about it. In those circumstances, in my view, the Immigration Appeal Tribunal was correct in allowing the appeal.

The next question is therefore whether the Immigration Appeal Tribunal was right to look at the matter itself. Once it had found that the adjudicator gave no reasons, it is obvious that it had to consider it itself or yet again remit it. Quite rightly, it considered the matter again for itself. It is noteworthy that there is no challenge - and could not be a challenge - to its conclusions as a matter of fact which rely on the CIPU report rather than on the information given by Mr Joffé.

In those circumstances there is no real prospect of success. This application is refused.