MO (Algeria) v Secretary of State for the Home Department

This is an appeal for which permission was given in certain respects and also an application for permission to appeal in relation to certain other issues, to which I will subsequently return. The applications and appeals all concern a young man from Algeria. He is of Berber ethnicity. He came to the United Kingdom in July 2004 and sought refugee status. Since then, that application, initially rejected by the Secretary of State, has had a chequered history. His first hearing was, in part, successful, in the sense that part of his account as to why he had a well-founded fear of persecution was accepted by the adjudicator as being truthful, but the rest of his claim was rejected and, once errors of law had been identified, his case was reconsidered. On reconsideration, the whole of his account was in issue. This time his account was rejected as being untruthful. This appeal and applications then turn on the propriety of issues of credibility being reconsidered and also the approval of the tribunal second time round, to consideration of the medical and objective evidence.

In order to put those applications in their proper factual context, it is necessary for me to deal with some of the background. The applications and appeals were all dealt with before this court together. I shall describe the appellant as “the appellant” throughout. His applications and appeal centred upon his claim that in 1998 he had joined the Reassemblement pour la Culture et la Démocratie (“RCD”). There, as he accepted, in a low level capacity, he had distributed leaflets and other information but he had, so he contended, come to the attention of undercover police and intelligence officers because he attended demonstrations in Algiers which those officials had infiltrated. In one particular demonstration, in January 2001, his behaviour had come to the attention of the police and he was arrested. Once arrested, he said that he was detained between January 2001 and March 2001. During the course of that detention he was tortured and ill-treated to an extent that would certainly, with those facts stood alone, amount to past persecution. But, he contended, helped by a police officer who shared his ethnicity, he escaped from detention. There was some dispute as to whether he had ever been charged with an offence. At interview he had said he was, but throughout the rest of his evidence before the various fact-finding tribunals, he had no recollection as to whether there was any outstanding charge against him.

He said that he hid from the attention of the authorities throughout the period from his escape in March 2001 until May 2002. But in 2002 over a year since his escape, his brother was arrested, in an attempt (so he contended) to force him into revealing where he was. Accordingly, in May 2002, he said he fled Algeria, fearing the pursuit of the authorities. He then travelled to France where he did not seek refugee status and from there went to Spain. There he worked for two years but, as he frankly acknowledged, in order to better himself, he came to the United Kingdom. He did not, at first, claim asylum but when arrested sought the status of refugee.

The history of his appeals against the initial refusal by the Home Office in October 2004 was as I have already broadly described. The first appeal was heard by an adjudicator, Mr Moore. The issues and resolution of those issues before the various bodies are of significance and I must spend some time considering them since they form the foundation of the application that there was a wrong approach by the tribunal on second reconsideration to earlier findings of fact by Mr Moore.

Mr Moore considered the history I have already outlined and concluded, in his decision of 9 February 2005, that the appellant was likely to have been detained and tortured. He based that conclusion in part upon an expert report from a Mr Joffe dated 11 December 2004, which had described momentous riots involving the Berber population, one of them about 1 million having targeted Algiers, and in support, in reliance upon that and also a medical report from Dr Frank reached the table of conclusion to which I have already referred.

But Mr Moore went on to make adverse findings, disbelieving the appellant in his account of what had happened thereafter. He rejected his claim that the authorities had remained interested in him and pursued him. In reliance in part upon this appellant’s behaviour in going to Spain, continuing to live in Spain and only thereafter coming to the United Kingdom, he made the comment that his account of entering the United Kingdom with a forged Portuguese passport, as he put it, “undermined the general credibility of the appellant’s claim.” In short, Mr Moore rejected the truth of this appellant’s account once he had escaped and, in particular, took the view that there was no risk of persecution should he be returned as a failed asylum seeker.

As Mr Moore identified, the adverse findings as to what had happened to the appellant once he had escaped were crucial to Mr Moore’s rejection to the appellant’s claim.

The appellant appealed. The grounds upon which he did so are of importance in the instant appeal because they, as they should do, determined the approach of those tribunals considering reconsideration. The appellant contended, in those grounds, that the adjudicator erred in failing to follow the country guidance case M (Djebari Decision-Evidence) Algeria CG [2003] UKIAT 00089. But not only did the appellant challenge the application of that country guidance case, he also challenged the adjudicator’s findings of fact as to the behaviour of the appellant on escape and as to the interest in him of the authorities. In particular, he challenged those findings in the context of the medical reform. Those grounds demonstrate that the appellant not only relied upon what he contended to be the misapplication of the country guidance case, but also as to whether the appellant fell within a category that would place him at risk; he also challenged those events which he, by implication, accepted needed to be established in his favour to found his contention of risk on return.

On 14 April 2005 permission was given to the appellant to argue on all his grounds. On 9 June 2006 the Asylum and Immigration Tribunal (“AIT”) considered his appeal. In that reconsideration they confined themselves to what has been, in cases such as this, called the “first stage”. In other words, it considered whether errors of law had been established and, on concluding that they had been established, made directions as to the further course of the reconsideration. During the course of that first stage, the AIT in a determination dated 9 January 2006 stated that Mr Moore had made errors of law in failing to make findings about all the material evidence “both subjective and objective” which went to the risk to the appellant on return. They pointed out, in particular, failure to make any findings relevant to the question as to whether he would be of interest to the authorities on return in relation to whether he had been charged or not. Further, they recognised that there had been a failure to consider the medical evidence of Dr Frank in relation to the credibility of the appellant’s account after his escape. In the light of those conclusions, the tribunal directed that all matters should be considered at the second stage of the reconsideration, notwithstanding the earlier favourable findings of Mr Moore in relation to detention, torture and escape.

The first ground advanced by way of a renewed application for permission to appeal, together with the second ground, is whether the conclusion of the first stage tribunal, that the second stage tribunal should reconsider all the facts, offended a principle of law identified by this court in DK (Serbia) & Ors v Secretary of State for the Home Department [2006] EWAC Civ 1747. The principle which it is said the tribunal breached is that which is said to be a principle that facts should only be revisited on a reconsideration if they are infected by the error of law identified. The corollary of that principle is that the facts should not be revisited where they have not been infected by an identified error of law, unless fresh evidence which satisfies the rules for producing such evidence has been admitted (see paragraph 25 of DK (Serbia) & Ors).

In my view it was not possible to distinguish the appellant’s account of the history in 2001 following his escape from his account of events of attending the riot and thereafter. Nor was it possible to distinguish those two sets of facts from the all-important issue as to whether he would be at risk of persecution on return. That issue ultimately turned on whether he would be of interest to authorities when returning as a failed asylum seeker. That itself turns on what he was found as a fact to have done in the instance appeal, namely to have attended a demonstration and to his involvement in the RCD, to his account of the reaction of the authorities, detention, torture, escape and search, and whether it was found that the authorities had lost interest in him. If the appellant failed to establish that the authorities had maintained interest in him, that would plainly reduce the risk of interest of the authorities on his return.

The close relationship between the post alleged arrest and pre-arrest events was rightly recognised by the tribunal at both the first and second stage of the reconsideration and even by Mr Moore in the passage to which I have already referred, at paragraph 39 of his determination. Ms Hooper, on behalf of the appellant, contends that the country guidance case M (Djebari Decision-Evidence) Algeria demonstrates that the appellant would be at risk, even if the fact-finding tribunal disbelieved him as to what had happened on his escape. I disagree. The tribunal did not accept that the evidence of the expert with which it was concerned, namely Dr Spencer, established a general risk to those returning as a failed asylum seeker, even if there were isolated occasions of ill-treatment. What they appear by implication to have concluded is that there might be a risk where a person is detected as having a political or Islamist past. It is only those, who, it appears, would be at risk of persecution. The low level of activity which the appellant described, even if he was believed, would not bring him within that category. I conclude that the appellant has failed to establish that the tribunal, in ordering a general consideration of all the facts, erred in principle in making that order. It was not possible to distinguish those facts relating to the appellant’s original detention from the facts relating to his behaviour and the interest or otherwise of the authorities. Not only was the tribunal entitled, but, in my view, it was right to order reconsideration of all the facts. I therefore would reject the first two grounds of the application and would refuse permission to appeal against them.

The remaining grounds, which have all been taken together, rightly are grounds in respect of which permission was granted. Those remaining grounds of appeal relate to the approach of the AIT at the second stage of reconsideration in its determination of the 9 August 2006. Unlike the earlier adjudicator, the tribunal rejected the appellant’s account of his arrest, detention and torture. He was disbelieved in relation to all the important elements of his account. The tribunal described him as being vague and at times evasive. He was particularly so, so they conclude, in relation to an account he gave of his brother being beaten in front of him and his father, which was not an account he had given earlier. They also found implausible his account of his escape, in the context of the serious ill-treatment and torture to which he was subjected. They concluded that he would not have been able to escape in the way he described, had he been beaten and tortured in that way. They identified a particular discrepancy as to the course of his escape. He had originally described his escape to his home but, during the course of his evidence before this tribunal, described going to a building site where his father worked and subsequently getting home by way of taxi. Further, there was, as they found, significant discrepancies in relation to his history of work, working, as he said, as a bus driver on a daily basis up to 2001. They further share the original adjudicator’s doubts as to why it was the authorities should fail to discover him for over a year after his escape but then should be then be so anxious to ensure his re-detention as to detain his brother.

Those conclusions, that the appellant was not to be believed, were said to be without acknowledgment of the impact of Dr Frank’s evidence. Dr Frank had made a report giving evidence about this appellant’s condition, following his torture and detention. It was argued on behalf of the appellant by Ms Hooper that the tribunal ought to have taken into account that doctor’s evidence before reaching any conclusion as to the facts. That medical evidence not merely recorded the appellant’s own account of what had happened to him, but also identified symptoms, particularly breathlessness and pain, objectively consistent with the appellant’s account. On the contrary, so it was contended, the tribunal erred in rejecting the appellant’s account and reached a concluded view as to credibility before rejecting the medical evidence.

This is not a novel point. Frequently, appeals are advanced on the basis that the fact-finding tribunal failed to take into account medical evidence before reaching a concluded view as to credibility. The submissions are based upon the decision of this court in Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367. But in that case it was plain to this court that the tribunal had reached a conclusion as to credibility and then -- and only then -- dismissed the medical evidence. They had not deployed the medical evidence in any way as they should have, in order to reach a concluded view as to credibility (see paragraph 24 of Wilson J’s, as he then was, judgment). There has been, as Buxton LJ put it, an artificial separation of the factual and of the medical evidence. The medical evidence, as Buxton LJ put it, will generally be relevant to the truth of the factual evidence (see paragraph 29).

But, in my judgment, that was not a principle breached by this tribunal. It made that clear at paragraph 20, in which it spoke of the benefit of the medical assessment of Dr Alec Frank and gave a short account of his report. All the tribunal did, in my judgment, was to disagree with that doctor’s acceptance of the truth of the appellant’s allegations. That the tribunal was perfectly entitled to do. As this court has said on a number of previous occasions, the fact-finding tribunal must start somewhere. In Ms Giovannetti’s most helpful outline written argument, for which I am grateful and which obviated the necessity of my having the pleasure of hearing her oral argument, she identifies a number of authorities which fully set out the proper approach of the fact-finding tribunal after the decision of this court in Mibanga v Secretary of State for the Home Department (see in particular S v Secretary of State for the Home Department [2006] EWCA Civ 1153 and SA (Somalia) [2006] EWCA Civ 1302). Provided that the medical evidence is considered in the context of the consideration of the credibility of the appellant, no error of law will be disclosed.

The fact that there are inconsistencies, maybe medically explicable, does not deprive the fact-finding tribunal of the right to rely upon such inconsistencies, provided the tribunal take into account the medical view. Those inconsistencies may be stark and reveal implausibility, wholly distinct from the account the doctor gives of the medical consequences of the alleged torture. The instant appeal affords an example of that approach in the relation to the appellant’s description of his behaviour after he had escaped, as he alleged.

I would, however, add words of caution. It is true that a doctor is not required to give his view of the credibility of the patient and it will be of limited assistance. But a doctor is not to be criticised when he does so. Doctors often do comment upon the consistency and credibility of the historian before them, namely of the patient’s account. Whilst, as Ms Giovannetti pointed out in the authorities to which I have already referred, there are a number of dicta that are not usually appropriate for a doctor to assess the credibility of the applicant, he is not to be criticised when he does so. Indeed, sometimes it will be unfortunate if he did not, since then the fact-finder will be deprived of the benefit of the doctor’s opinion that someone has proved to be an unreliable historian. Of course that is not dispositive. A tribunal charged with finding facts must make up its own mind but I make these comments because the tribunal, at the second stage in the instance appeal, said this:

“As we have found [the appellant] not credible, we place limited weight on this medical report and note that he was not unable to give evidence and appeared to have a selective memory as he could recall certain points. It is not within the doctor’s remit to make credibility findings, he should confine himself to clinical ones as they are based on accepting what he said, which we have not [sic].”

This passage was, in my view, too prescriptive. What the tribunal should have said is that Doctor Frank’s views, based as they were in the main on what he had been told by the appellant, did not determine the issue of credibility. Dr Frank made findings which the tribunal was bound to take into account in considering credibility, in particular, in his report he said that he described the appellant’s account of being kicked in his lower legs and went on in particular to describe his account of being placed in the cement mixture. He found the current feelings that the appellant described of suffocation, strangling and an inability to breathe with his balance being upset as attributable to his memory of torture. Despite that consistency, the tribunal had an ample basis on which to find that the appellant was not telling the truth, particularly in the light of the events after the alleged escape, the very story which -- it should be remembered -- the tribunal, on first stage of reconsideration recognised cast light, or more accurately a shadow, over the appellant’s earlier account.

The final grounds of appeal dealt with the tribunal’s rejection of the independent evidence of Mr Joffe of objective evidence of discrimination against those of Berber ethnicity. Mr Joffe described in full, in a report of 2004, the events leading up to and following the riots in 2001, in particular the attitude of the authorities thereafter to those who had participated. He took the view that, in relation to this appellant, he would be at risk on return as a result of those events. In a more up-to-date report of 26 June 2006 he spoke of a new computerised record system from which it would be possible for the authorities to detect the appellant, should he be returned. The tribunal rejected that evidence. In particular, they rejected it on the basis of a country of origin report dated 1 November 2005 which itself gave an account of an earlier report of June 2003 stating that those living within the Kabylie region, by which were meant Berbers within that region, were not generally discriminated against in public life. That passage is under the rubric “Treatment of Berbers”.

In my judgment, there is no basis for levelling criticism against the tribunal for preferring that description of the situation of Berbers to that given in relation to Mr Joffe. More importantly, Mr Joffe’s report in relation to risk on return was predicated upon this appellant’s account of his escape and the records that would be kept, following that escape. Since his account of the escape was rejected, Mr Joffe’s report loses its effect. However, again I should note in relation to the drafting of this tribunal’s determination that towards the end of the report, as Ms Hooper pointed out today, they said:

“We have placed limited weight on Mr Joffe’s report because the original one was not pertinent for the purposes of this appeal as it relates to the original matter and is dated December 2004 …”

I do not understand that passage. It is quite wrong to say that his report is not pertinent; clearly it was. What they meant was that they did not accept it in the light of the country of origin report and in the light of the country guidance case M, to which I have already referred, and the more up-to-date evidence. But there is no basis for saying that the tribunal ignored Mr Joffe’s report since, earlier in their determination, they refer to it. In those circumstances, in my judgment, there is no basis for this final ground in relation to the evidence of Mr Joffe.

For all those reasons I would dismiss this appeal

I agree.

I also agree. The three applications, by way of renewal, are refused and the remaining four complaints in the form of grounds of appeal for which permission was given are dismissed.

Appeal dismissed (C5/2006/2162).