El Rifai v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE LAWS: This is an appeal against the decision of the Immigration Appeal Tribunal ("IAT") made on 3 June 2004 when the IAT dismissed the appellant's appeal to it from the determination of the adjudicator which had been promulgated on 27 August 2003. The adjudicator had dismissed the appellant's appeal against the Secretary of State's refusal of his asylum claim. In doing so, the adjudicator rejected submissions based both upon the United Nations Refugee Convention and the European Convention on Human Rights. Permission to appeal to this court was granted by Sir Christopher Staughton after a hearing on 28 October 2004.

2. The appellant is of Palestinian ethnic origin. He was born in the Lebanon on 26 January 1967. He arrived in the United Kingdom on 16 November 1999. Before that, after leaving the Lebanon, he passed through France where he remained for some days without claiming asylum. At length he claimed asylum on his arrival in the United Kingdom. Three years later, on 14 November 2002, the Secretary of State wrote refusing his claim. He gave extended reasons. Essentially he took the view that the appellant was an economic migrant. Yet more time went by. It was not until 9 April 2003 that the Secretary of State formally gave notice of refusal of leave to enter and directions for the appellant's removal to the Lebanon.

3. The appellant's case as to what allegedly had driven him to leave the Lebanon is succinctly described by the IAT as follows:

"2 ..... Having joined the Fateh political party of Yasser Arafat in 1987, he [the appellant] did voluntary work for that organisation. He told the Adjudicator that in November 1988, whilst putting up posters for Fateh, he was attacked by soldiers of the Syrian army, whereupon he and his colleagues retaliated verbally. The Syrian soldiers then hit the appellant and his colleagues with the backs of their weapons. The appellant and his colleagues escaped but were shot at by the Syrian army personnel. One of the appellant's colleagues opened fire on the Syrians. During the resultant exchange of shots, one of the appellant's colleagues was injured and the group later heard that one of the Syrian soldiers had died.

3 Thereafter, the appellant said that he was on the run, moving from one Palestinian refugee camp to another. During this time, he was approached by members of Hezbollah who tried to get the appellant to help them carry out terrorist attacks. He refused as he was against the killing of innocent people, whereupon he was abused by the Hezbollah members. Having moved to stay with his aunt for around two months, the appellant departed from Lebanon."

4. The adjudicator did not accept the whole of the account put forward by the appellant, particularly in relation to the incident of November 1998. This is what he said:

"6.1 The appellant's account of the incident in Beirut in November 1997 was very vivid. It is clear that some such incident actually occurred and the appellant was involved in it. I cannot, however, accept the appellant's account at face value. Perfectly innocent refugees merely putting up political posters have no business to carry arms in order to do so. I note that this is not a case where the appellant went out with a couple of close friends. He had never met the other two men before. His precise words were that he had 'never been with them on an operation before'. It is noticeable that when giving evidence he said, 'We shot at them and they shot at us'. The order in which he puts the shooting is telling. It is plain that the prior encounter had been relatively informal because the soldiers did not body search the appellant and his colleagues, otherwise the pistols would have been found. On looking at all the evidence in relation to this incident in the round, I find that the appellant and his colleagues embarked upon a criminal enterprise which ended, on his account, in the death of one of the two soldiers that he and his colleagues encountered."

The adjudicator proceeded to deal with the appellant's claim about the Hezbollah (paragraph 6.3 of the determination). At paragraph 6.5 he said:

"6.5 I do not find the appellant is at risk of persecution in Lebanon simply by virtue of the fact that he is a Palestinian refugee. It is noticeable that he has lived there for most of his life without any complaint at all. If the appellant's account of the incident in Beirut and his encounter with Hezbollah is true, which I find it is having regard to the lower standard of proof and subject to my reservations, then I find that he would not be at risk of persecution upon return for the reasons I have mentioned above. Whether it is true or not, I find that he would not be at risk of persecution upon return simply as a failed Palestinian asylum seeker."

I must return in due course to paragraph 6.4 of the determination. It will be convenient to deal with that a little later.

5. The IAT, for its part, made this comment:

"Nor does the Tribunal find that there is merit in the submission on behalf of the Appellant that his position as a Palestinian in Lebanon places him at real risk of persecution or Article 3 ill-treatment, either alone or in combination with the facts as found by the Adjudicator. We note at page 4 of the US State Department Report that Palestinian refugees were recorded as being 'subject to arrest, detention and harassment by state security forces, Syrian forces and rival Palestinians'. As an example of such practices, Palestinian refugees living in camps were said not to be allowed to bring in construction material to repair damaged houses. Fateh's chief official in the Biq'a was at one point arrested at a checkpoint outside the Ain el-Hilweh camp, but was released shortly thereafter ..... There is, however, no evidence to show that Palestinians living in Lebanon are targeted for persecutory treatment or treatment that would otherwise violate Article 3 of the ECHR. In particular, there is no evidence to show that a Palestinian who comes within the criminal justice system of Lebanon would as such be at real risk of such treatment."

6. It is of the first importance to notice that since the adjudicator's determination post-dated 9 June 2003, the statutory appeal to the IAT was on a point of law only (see section 101 (1) of the Nationality Immigration and Asylum Act 2002). The grounds of appeal to the IAT, in one way or another, essentially assert errors of fact. Granting permission to appeal, Sir Christopher Staughton referred to three errors or alleged errors. One was that the adjudicator had said that the appellant had left Palestine to seek asylum when in fact it was the Lebanon. Another was the adjudicator's statement that the appellant had been on the run for two years when it was only one - 1998 to 1999. There was another concerning the appellant's brothers. These errors, as the IAT found, are not of any effective substance.

7. A further complaint - and one that is much more important for the appellant's case as it has been developed - concerned the use of firearms in the incident of November 1998. The adjudicator's findings are at paragraph 6.1 of the determination, which I have already read.

8. Mr Jones submitted this morning that the adjudicator's conclusion that the appellant was involved in a criminal enterprise ignores - and indeed the adjudicator ignored - the evidence as a whole relating to the circumstances prevailing in the Lebanon. I do not accept that. The adjudicator set out the context of the incident as it had been put forward by the appellant at paragraph 3.3 of his determination. It concerned a confrontation with Syrian officers. The adjudicator was here making a specific finding as regards a specific incident. I do not consider that it was incumbent on him to set out further narrative reasoning relating to the general background in Lebanon as an essential support for the conclusions at which he arrived. Those conclusions seem to me to be well within his proper power to decide what the facts had been. Mr Jones also levels criticisms at the IAT's treatment of the adjudicator's reasoning concerning this incident of November 1998. In my judgment, that goes nowhere in the absence of an error of law by the adjudicator.

9. Mr Jones further submits that the adjudicator has not, as it were, negatived the possibility that there was some political element in the appellant's activities in November 1998 and he says that is important because, if there were some such political element, it is implicit in the later findings of the IAT (paragraph 14) that the appellant would not get a fair trial if he were returned to the Lebanon.

10. In my judgment, the adjudicator's conclusion that the appellant embarked on a criminal enterprise represents a clear overall judgment of the incident of 1998. There is not a freestanding case to be made based on his prior membership of the Fateh party. The IAT held (at paragraph 17) that there was no evidence that Fateh members are persecuted by the Lebanese authorities. Mr Jones sought to put in a Council of Europe report to contradict this. It appeared, when the matter was explored in argument, that that document was available but not put before the adjudicator. Its contents cannot, in my judgment, disclose or demonstrate any error of law by the adjudicator.

11. In his grounds of appeal to this court the appellant was at pains to insist that the appellate authorities have attributed Lebanese citizenship to him whereas, he asserts, he is a stateless Palestinian refugee formerly living in Lebanon. This was not developed by Mr Jones in the course of his oral submissions this morning. I deal with it briefly for completeness. It is true that the adjudicator (paragraph 2.1) described the appellant as "a citizen of Lebanon, having been born there and having spent most of his life there, but he is of Palestinian ethnic origin". The IAT referred to him as "a Palestinian citizen of Lebanon" (paragraph 1). The Secretary of State has never asserted that the appellant is a Lebanese national as such. He has been subject to civil registration in the Lebanon; that is shown by a certificate of birth that is with the papers and a special identity card supplied by the Lebanese Ministry of the Interior. It would appear that he has rights of residence in the Lebanon. I shall have to deal separately with the appellant's complaints as to the assessment made by the adjudicator as to the risk of ill treatment if the appellant were returned to the Lebanon. At this stage I make it clear that, in my judgment, there is no freestanding point to be got out of the references to the appellant as a citizen of the Lebanon.

12. I turn next to a further ground of appeal to this court, namely that the appellant had been inadequately represented before the appellate authorities and that there had been inadequate interpretation or translation facilities. In my judgment, there is nothing in this. The appellant had counsel before the adjudicator and the IAT. There does not seem to be any distinct complaint about counsel before the IAT, save for a matter raised this morning to which I will refer in a moment. The only complaint about counsel before the adjudicator is that he did not submit a skeleton argument. As for the translation services, there was no suggestion before the IAT of any defect in translation in the course of the earlier proceedings before the adjudicator. By the time the appellant appeared before the adjudicator he had spent, as I understand it, something like three years in educational courses in the United Kingdom, including English language classes.

13. Mr Jones submitted this morning that the appellant's earlier solicitors had failed to put before the IAT new evidence which was available. That evidence had not been available before the adjudicator.

14. The only question arising on this appeal is whether the IAT should have found an error of law by the adjudicator. I have already referred to Section 101 (1) of the Act of 2002. Accordingly the failure of the solicitors, if that is what it was, to put this material before the IAT is immaterial to the only question in the case.

15. It is said that the appellate authorities have failed properly to appraise the objective evidence as to the risk of persecution or ill treatment, contrary to the European Convention, which the appellant might suffer if he were returned to Beirut. I apprehend that this is the real nub of the complaint. As Mr Jones developed the point this morning, it became plain that it had a single focus. Should the adjudicator have explained what he made of certain evidence relating to the use of torture by authorities in the Lebanon? Here is the relevant evidence. First the US State Department Report of February 2003 has this under a heading -

"Torture and other cruel and inhuman and degrading treatment and punishment

Torture is not banned specifically by the constitution and there continues to be credible reports that the security services abuse detainees and in some instances use torture. Human rights groups reported that torture was common practice. Violent abuse usually occurred during the preliminary investigations conducted at police stations or military installations in which suspects were interrogated without an attorney. Such abuse occurred despite laws which prevented a judge accepting any confession extracted under duress. Methods of torture reportedly included beatings and suspension by arms tied behind the back. Unlike in the past there were no reported applications of electric shocks to the genitals. In 2001 the Justice minister publicly stated that -

'Torture in Lebanese prisons is real and mainly occurs during preliminary investigations.'

The minister also added that the government would adopt measures to eliminate the use of torture. By the year's end no measures had been taken."

16. The next piece of material is the CIPU Report (paragraphs 4.48 and 4.51). Paragraph 4.48 states:

"Human rights organisations have reported that there were instances of abuses - in some case, torture - carried out on detainees by Lebanese security forces, the Military Intelligence and Securité Generale in particular.

There have been allegations of torture and beatings during the preliminary investigations that are conducted at police stations or military installations, where suspects are interrogated, in some cases, in the absence of an attorney ..... Such abuse occurs despite laws that prevent judges from accepting any confession exacted under duress.

.....

4.51 Torture is not banned specifically by the Constitution, and there continued to be credible reports that security forces abused detainees and, in some instances, used torture. Lebanon did, however ratify the Convention Against Torture in October 2000."

17. Lastly there is a report covering events January to December 2002 prepared by Amnesty International. Under the heading "Torture", it is stated:

"There were reports of torture and ill treatment of political detainees held in detention centres operated by military intelligence."

Examples are given. Under the heading which immediately follows "Prison conditions", this appears:

"Prison conditions improved in some areas in 2002, apparently as a result of campaigning by national and international human rights groups."

18. The adjudicator had said this at paragraph 6.4 of his determination:

"Having considered the objective evidence very carefully indeed, I can but note that prison conditions in Lebanon do not meet international standards but I do not find on looking at the evidence as a whole that there is a reasonable likelihood that on detention by the authorities in Lebanon his treatment would be so bad as to amount to persecution or indeed that it would be so bad as to be likely to reach the high threshold of inhuman and degrading treatment as to amount to conduct contrary to Article 3 of the European Convention on Human Rights."

There is no reference there to the evidence about torture. If it was relevant, in my judgment, the adjudicator surely ought to have dealt with it given his undoubted duty to give proper reasons. His failure to do so would amount to an error of law.

19. The crucial question then is whether this material relating to torture was relevant to any issue in the case. The argument put forward by Mr Beal for the Secretary of State is that it was irrelevant. This is for two reasons. Mr Beal submits first that the evidence relates only to torture by the security forces, and not therefore by arresting officers acting within the ordinary criminal justice system. Secondly he submits that it was not the appellant's case put to the adjudicator that he was at risk of torture or ill treatment on return by the Lebanese authorities. His answers to the interview questionnaire and his witness statement prepared for his appeal alike demonstrate, said Mr Beal, that the appellant's consistent case was fear of the Syrian authorities.

20. As to the first of these two points, certainly there are references in the material to the security forces. To my mind however it is not entirely plain that the practice of torture is being stated to have happened within such clear limits as Mr Beal suggests. I do not consider that this evidence can be so decisively sidelined. It may be that Mr Beal is right. But the matter is not, as it seems to me, free from question.

21. The point as to the true nature of the appellant's case put to the adjudicator is more elusive. It is true that in his interview and his statement the appellant makes repeated reference to fear of the Syrian authorities. I accept, certainly, that the adjudicator would make no error of law in failing to deal with a case that was simply never put to him. Judging from the way the adjudicator himself characterised the appellant's case, again the matter, to my mind, is not so clear-cut. Here is paragraph 4.1 of the adjudicator's determination:

"Mr Wray [counsel for the appellant] did not submit a skeleton argument but in his oral submissions argued that on return to Lebanon the appellant would be held on arrival in order to establish his identity. Suspicion would be aroused because it would be perceived he was Palestinian and it would be suspected that he was a member of El Fateh. It would be likely that he would be known to have come to the attention of the security forces before. Even if he were to get past the airport, the US State Department report indicated that Palestinian refugees were subject to arbitrary arrest and harassment. This would be likely to happen to him before he was able to reach the relative safety of any Palestinian camp. There was systematic harassment and ill treatment of Palestinians and there was a likelihood of ill treatment if he were to be subjected to arbitrary arrest."

It seems to me that that engages the question of what might happen on the appellant's confrontation with the Lebanese authorities upon his being returned to Beirut. Moreover paragraph 6.4, which I have read, at least suggests that it was the adjudicator's own view that the appellant might be detained on arrival. He refers in terms not only to prison conditions but to the appellant's treatment on detention by the authorities in Lebanon. I accept that he is not distinctly finding that such a detention would take place but it seems to me that it is being contemplated as a possibility.

22. I think it is material to note the appellant's evidence about the nexus between the Lebanese and Syrian authorities. In Paragraph 7 of the witness statement he states:

"I wish to explain the political situation in Lebanon and in order to show how difficult the situation is for Palestinians in the country. Lebanon operates alongside Syria against their common enemy the Israelis. However, the Syrian government operates the Lebanese government like a puppet. The Lebanese are more dependent on the Syrians; economically, militarily and are influenced politically. The Syrian army operates throughout Lebanon, especially in my area of Beqa'a."

In paragraph 8 he states:

"Due to the fact that the Lebanese are very much under the control and influence of the Syrians, both States support this hatred for the Palestinians. The Lebanese government and its people have a great deal of hatred towards the Palestinians, as they blame the Palestinians for igniting the civil war. Palestinians are treated as very low class citizens. Palestinians are largely well educated people but they are not allowed to have proper jobs. They are not allowed to succeed in the country and most Palestinians live in refugee camps. The Lebanese want us to go and claim back our country and to leave their country."

23. It may be that the acts of Syrian forces and Lebanese authorities are not hermetically sealed from one another any more than the acts of Lebanese security forces and other Lebanese authorities.

24. I emphasise what I hope is obvious. I make no findings of fact about these matters. These were issues and questions that, it seems to me, were reasonable and plain before the adjudicator. In all those circumstances I have, for my part, concluded that it was the adjudicator's duty to address what may be called the torture issue, and his failure to do so was an error of law. The matters to which I have alluded, elusive and unfocused in some respects as they are, needed to be addressed by the appellate authority appropriate for the task. I have not forgotten that the IAT concluded (at paragraph 14) that, on the adjudicator's findings, there was no real risk that the appellant would be apprehended on his return in connection with the November 1998 incident. But I am not sure that the adjudicator's findings demonstrate as much, and, in any event, the reasoning in the IAT's decision is perfunctory.

25. For all these reasons I would allow the appeal. I do so on the narrow basis, as I hope I have made plain, that the adjudicator made an error of law in not addressing any reasoning upon what I have called the "torture" issue. The matter should, if my Lord agrees, be remitted to the IAT to rehear the appeal in the light of this court's judgment. It goes without saying that I express no view whatever as to the outcome of that appeal. It may very well be that the appellant has a considerable hill to climb.

26. LORD JUSTICE KENNEDY: I agree.

Order: Appeal allowed