Bouattoura, R (on the application of) v Immigration Appeal Tribunal

MR JUSTICE KEITH: The claimant comes from Algeria.

He arrived in the UK on 6 August 1999. He had travelled from France to Dover with his wife and two children on forged travel documents. He applied for asylum on his arrival. The Secretary of State refused his claim for asylum by letter dated 23 March 2001. The claimant appealed to an adjudicator. On 2 May 2003 the adjudicator allowed his appeal, holding that the claimant had a well-founded fear of persecution in Algeria, and that the UK would infringe his rights protected by Articles 3 and 8 of the European Convention on Human Rights ("the Convention") if he was returned there.

This claim for judicial review arises out of what happened after that. The Secretary of State was granted permission to appeal against the adjudicator's decision to the defendant, the Immigration Appeal Tribunal ("the Tribunal"). The appeal was heard on 3 September 2003. The Tribunal allowed the appeal, and remitted the claimant's case to be re-heard by a different adjudicator. The claimant now seeks judicial review of the decision of the Tribunal, permission to proceed with the claim having been granted by Lindsay J. The claimant's case is that the Tribunal should have heard the appeal on its merits rather than remitting it for a rehearing. The primarily relief which he seeks are orders quashing the remission of his case to a different adjudicator, and requiring the Tribunal to reconsider the appeal.

The details of the claimant's claim for asylum are not directly relevant to the issues which arise on this claim. I only need to summarise them in brief. The claimant is 27 years old. He worked for the national printing company in Algeria. Employees of the company were regularly targeted by members of the Groupe Islamique Armée ("the GIA"), a fundamentalist terrorist group, who were trying to enlist their assistance in planting bombs in the company's premises. The claimant refused to get involved. One day in July 1997 he was seized by members of the GIA. He was slashed with a knife and beaten up, either because he had refused to help them in the past, or to persuade him to do so in the future, or both. He was too afraid to return to work, as a result of which he lost his job. He did not report what happened to the police because he thought that they would not be able to protect him since they had proved unable to protect themselves from the GIA. After spending almost two years in hiding, he and his family left Algeria. His aim was to come to the UK where both his brother and a cousin live. He did not claim asylum in France because he thought that the French authorities would send him straight back to Algeria.

The Secretary of State had some doubts about the credibility of the claimant's story. However, those doubts were not based on the implausibility of the claimant's version of events or on any inconsistencies in his account. They were based on the fact that the claimant had not applied for asylum in France, and that although he had admitted having had an Algerian passport, he had come into the UK on forged French travel documents. These were what Mr Ranjiv Khubber for the claimant rightly describes as "generic points", ie arguments regularly relied upon by the Secretary of State when refusing claims for asylum irrespective of the weight they have in a particular case.

There were other reasons for the Secretary of State's decision which did not depend on the credibility of the claimant's version of events. The Secretary of State did not regard members of the GIA as "agents of persecution" within the terms of the Refugee Convention. He thought that the police and the authorities in Algeria could give the claimant adequate protection from the GIA. To the extent that the GIA were still active in Algeria, there were many parts of Algeria where it was possible to live without being at risk of attack from them. Nor did the Secretary of State think that the claimant would be likely to be of any adverse interest to the Algerian authorities on his return to Algeria.

The Secretary of State was not represented at the hearing of the claimant's appeal to the adjudicator. The adjudicator did not refer to the Surendran guidelines in his determination, ie the guidelines issued to adjudicators in June 1999 by the Tribunal, and annexed to the tribunal's judgment in MNM v Secretary of State for the Home Department [2000] INLR 576, as to how adjudicators should proceed if the Secretary of State is not represented at the hearing of an appeal. As it was the adjudicator did not doubt the claimant's credibility. There was nothing implausible in the claimant's account and a medical report on the claimant revealed injuries which the adjudicator regarded as consistent with his accounts of the attack on him by members of the GIA. In one respect, though, the adjudicator fell into error. He said that the Secretary of State had not challenged the claimant's credibility. As I have said, the Secretary of State had challenged the claimant's credibility, albeit on generic grounds only.

Having accepted the claimant's account, the adjudicator proceeded to reach a number of other conclusions, many of them based on his reading of the objective evidence. These have proved to be highly contentious. He concluded that the claimant would be at risk of persecution by the GIA if he was returned to Algeria, even though four years had elapsed since he had left the country and six years had elapsed since his confrontation with members of the GIA. He concluded that the reason for that persecution would amount to a Convention reason, namely an imputed political opinion, and that the persecution would also amount to torture or other inhuman or degrading treatment within Article 3. He concluded that the Algerian authorities were not capable of affording effective protection for persons who had been targeted by the GIA in the way the claimant had been. He concluded that the claimant would be at risk of persecution by the Algerian authorities as a failed asylum-seeker, and that that persecution would also amount to ill treatment of such a kind as to engage Article 3. Finally, he concluded that the claimant's return to Algeria would infringe his right to respect for his family life under Article 8 and that although his return to Algeria might be justified to maintain the integrity of immigration control, it would be disproportionate to require him to return to Algeria with his wife and children in view of the roots which they had established in the UK and the family links which existed here.

The Secretary of State's grounds of appeal to the Tribunal did not challenge the adjudicator's finding on the claimant's credibility. The Secretary of State did challenge most of the adjudicator's other conclusions. In particular he challenged the adjudicator's conclusion that the claimant would be at risk of persecution or ill-treatment of such a kind as was sufficient to engage Article 3 if he was returned to Algeria. The grounds of appeal did not specify the precise nature of that challenge, but the Tribunal rightly regarded it as including a challenge to the adjudicator's finding that the Algerian authorities would not be able to afford the claimant effective protection from the GIA on his return to Algeria. The Secretary of State also challenged the adjudicator's conclusion that the claimant's return to Algeria would amount to an unjustified infringement of his right to respect for his family life. He also challenged, by an amendment to the grounds of appeal which was not opposed, the adjudicator's failure to give effect to the Secretary of State's conclusion that the claimant could relocate to a safer part of Algeria.

It is common ground that the Tribunal formed the preliminary view that the Secretary of State's appeal should be allowed, and that the case should be remitted for rehearing by a different adjudicator. At least one of the factors which the Tribunal had in mind was the adjudicator's approach to the claimant's credibility. The Tribunal sought submissions from the Secretary of State's representative on the topic, even though it had not been in the Secretary of State's grounds of appeal. The Secretary of State's representative said that he had not intended to run this argument, but he pointed out the adjudicator's incorrect comment that the Secretary of State had not doubted the claimant's credibility. He commented that the adjudicator had failed to take into account the particular points which had caused the Secretary of State to doubt the claimant's credibility. That latter submission was based on paragraphs 2 and 4 of the Surendran guidelines, which read, so far as is material:

For his part, Mr Khubber, who also represented the claimant at the hearing before the Tribunal, submitted to the Tribunal that the reasons which the Secretary of State gave for doubting the claimant's credibility were extremely thin, in the sense that they were the sort of arguments conventionally relied upon by the Secretary of State as a justification for doubting an asylum seeker's credibility, even when their weight in a particular case was negligible. The Tribunal was then invited to reconsider whether a remission was the correct course to adopt before hearing submissions on the issues to which the grounds of appeal related. But after retiring for a short while, the Tribunal announced that the case would be remitted for hearing before a different adjudicator.

When the Tribunal came to promulgate its reasons on 18 September 2003, it said in paragraphs 3 and 4 of its reasons:

In my judgment, it was not open to the Tribunal to re-open the issue of the claimant's credibility. A challenge to the adjudicator's finding on the claimant's credibility had not been included in the grounds of appeal, and despite the Secretary of State's representative making submissions on the point at the specific request of the Tribunal, he did not even then apply to amend the grounds of appeal to incorporate such a challenge. I accept that it is open to the Tribunal to raise the question of an asylum-seeker's credibility itself, even in the absence of a challenge by the Secretary of State to the adjudicator's findings on credibility. But in adversarial litigation that is a power which should be exercised only in plain and obvious cases. There was no basis to do so in this case in view of the generic reasons why the Secretary of State had doubted the claimant's credibility. The fact that an asylum-seeker did not claim asylum in a country through which he was transiting should generally not be treated as damaging his credibility: see Symes and Jorro, "Asylum Law and Practice" paragraph 2.34, and the cases cited in footnote 3. That is especially so when the asylum seeker has given reasons, as the claimant did here, for not claiming asylum in the country of transit, and for preferring to make his claim for asylum in another country.

As I have said, the adjudicator found that the claimant's aim was to come to the UK where both his brother and a cousin lived. He did not claim asylum in France because he thought that the French authorities would send him straight back to Algeria. That finding was based on what the claimant had said in paragraph 10 of his witness statement, and the perceived wisdom is that the French approach to the Refugee Convention is less benevolent than ours (see R v Secretary of State for the Home Department ex parte Adan [2001] INLR 424). The fact that the claimant did not use his Algerian passport likewise could hardly be held against the claimant by the Secretary of State, when the Secretary of State had not investigated whether the claimant could have used it to get out of Algeria. On that topic the claimant's evidence (see paragraph 12 of his witness statement) was that he had left Algeria illegally, ie that he had left without permission, and that, no doubt, was why he had not used his passport when he left. These were the only grounds on which the Secretary of State doubted the credibility of the claimant's account. He had not thought that the claimant's account was either implausible or that there were inconsistencies in it.

Mr Adam Robb for the Secretary of State argued that even if the Tribunal should not in the circumstances have re-opened the issue of the claimant's credibility, a remission of the case to a different adjudicator for a rehearing was nevertheless an entirely appropriate course for the Tribunal to take in the light of the other issues which the appeal raised. There were a number of factual issues unrelated to the credibility of the claimant's account of what had happened to him, which the Tribunal thought that the adjudicator had not sufficiently addressed. They were (i) whether there was a risk that the claimant would be persecuted by members of the GIA on his return to Algeria; (ii) whether the Algerian authorities would be able to afford the claimant effective protection from such persecution; (iii) whether the claimant could avoid such persecution by living in another part of Algeria where he would be safe from reprisals by the GIA; and (iv) whether there was a risk that he would be ill-treated by the Algerian authorities as a failed asylum-seeker on his return to Algeria.

Mr Robb accepted that some of these factual issues could have been investigated by the Tribunal using the objective evidence which had been placed before the adjudicator, and any further up-to-date objective evidence which the parties agreed the Tribunal could consider. To that extent, a remission to an adjudicator would not have been necessary.

The course which the Tribunal could have taken would have been to hear the parties' submissions on those issues and to engage with them. If the Tribunal then thought that it could not dispose of the appeal itself, and that the case would have to be remitted, that decision could have been taken then.

But Mr Robb argued that one of those four issues could not have been investigated by the Tribunal. That was the issue whether the claimant could have avoided persecution by members of the GIA by relocating to a safer part of Algeria.

I am satisfied that that was an issue which had not been addressed by the adjudicator at all. The resolution of that issue is in part dependent on the objective evidence, but it is also dependent on the asylum-seeker's evidence, because he will not be required to settle in another part of the country from which he was fleeing. Even though he might be safer there, it might be harsh and unreasonable to require him to do so. That was not an issue on which there had been any evidence from the claimant. That issue, said Mr Robb, would have had to have been remitted in any event. If it was remitted, it cannot be said that it would not have been appropriate for other issues to have been remitted as well, even though it may have been open to the Tribunal to hear arguments on those issues and adjudicate on them.

I cannot accept this argument. The question whether it would have been harsh and unreasonable to require the claimant and his family to live in another part of Algeria would only arise if there were parts of Algeria to which it was safe for fugitives from the GIA to live. If the Tribunal had addressed that question, and had found on the objective evidence that there were not, the question which depended on the claimant's evidence would not have arisen. It follows that, if the Tribunal had not re-opened the issue of the claimant's credibility, there would have been nothing to prevent it from deciding for itself the remaining factual issues which it thought the adjudicator had not sufficiently addressed.

The course which the Tribunal should have taken, if it had not reopened the issue of the claimant's credibility, would have been to continue to hear the appeal on the grounds of appeal which the Secretary of State wished to advance. If, having considered the arguments relating to those grounds, it had considered that the appeal could not be disposed of without further findings of fact having to be made by an adjudicator, it would then have been appropriate for the Tribunal to order a remission of the case. But to do that before it had considered the representations which the parties wished to make was premature.

In reaching this conclusion, I have not regarded as significant the presumption against a remission in the old Rules of Procedure. Rule 23 of the Immigration and Asylum Appeals (Procedure) Rules 2000 (SI 2333 of 2000) provided:

For these reasons, I quash the decision of the Tribunal remitting the case for a rehearing by a different adjudicator. The Tribunal will now hear the appeal on its merits. A mandatory order requiring it to do that is not required because the effect of quashing the remission is that the appeal will be heard on its merits. I see no reason why the appeal has to be heard by the members of the Tribunal who heard the appeal initially. I have not heard from Mr Khubber or Mr Robb on that issue, but unless either of them wishes to argue to the contrary, the appeal may be heard by any members of the Tribunal. Nor is it appropriate for me to declare in effect that the Tribunal must proceed on the assumption that the credibility of the claimant's account of what happened to him cannot be challenged. It cannot be challenged if the Secretary of State does not seek permission to amend his grounds of appeal. But if he seeks and obtains permission to amend his grounds of appeal, the adjudicator's finding on the claimant's credibility may be challenged, but only on the grounds set out in paragraphs 12 and 14 of the Secretary of State's letter refusing the claim for asylum. They were the only grounds which, on the application of the Surendran guidelines, the Secretary of State could rely on.

MR KHUBBER: Your Lordship has clearly indicated the position as regards disposal in terms of relief. I do not think I need to address you on any of those elements.

MR JUSTICE KEITH: I have dealt with relief. The only relief I have ordered is a quashing order.

MR KHUBBER: It goes back to whichever Tribunal wishes to hear it.

MR JUSTICE KEITH: It goes back to whichever Tribunal is listed to hear the appeal in accordance with whatever are the usual practice for listing fresh appeals.

MR KHUBBER: I understand that. In those circumstances and for my part on the behalf of the claimant, the only issue is the issue of costs in relation to this application. Clearly, on the basis of your Lordship's judgment, I would ask for those costs.

MR ROBB: We do not oppose the order my learned friend will ask for.

MR JUSTICE KEITH: Which presumably is that the Secretary of State should pay to you the costs of the claim for judicial review to be the subject of detailed assessment.

MR KHUBBER: Yes, if not agreed then subject to detailed assessment. Also, as I understand it, I need to ask for detailed assessment of the claimant's costs.

MR JUSTICE KEITH: On the assumption that you are publicly funded. Has a certificate been filed?

MR KHUBBER: I am publicly funded. If you do not have a certificate I will ensure it is done within a very short period of time.

MR JUSTICE KEITH: While that is being checked, are there any other applications?

MR ROBB: My instructions are to ask for permission to appeal. The issue of importance is that, as we have all discovered in the course of this hearing, there is a need for guidance on the circumstances in which remission ought to be ordered and whether when it is ordered to go back it ought to go to the same adjudicator or different adjudicator.

MR JUSTICE KEITH: That does not arise now. That would have arisen if I thought remission was appropriate. But since I thought it was not appropriate, the issue is whether it should go back to the same or a different adjudicator or whether or not there should be a remission on limited issues simply does not arise at the moment.

MR ROBB: That is the point. We also say there is not at the moment any specific guidance in the terms of the application of the Surendran guidelines to the extent one then goes into the question of how much difference would this have made. Given it is potentially quite an important issue, we would ask for permission to appeal on that basis.

MR JUSTICE KEITH: You are not asking for permission to appeal on the basis you have a real prospect of success but on another basis, namely that significant issues of principle were raised which should be considered by a higher court?

MR ROBB: We do say a real prospect of success on that issue because it is an important issue.

MR JUSTICE KEITH: I am not going to grant permission to appeal. I do not think that the Secretary of State has sufficient prospects of success to warrant the grant of permission to appeal. I do not share your view that issues of principle are raised by the judgment that I have given in the light of the fact that a remission is not to be considered at this stage.

MR KHUBBER: My Lord, If it assists the Associate, I can indicate that we can provide, if it is not on the file, a certificate. I think that is the usual order I have had before in cases.

MR JUSTICE KEITH: (Discussion with Associate) There is one from December 2003. That is sufficient to cover this. Thank you for your help in a case which I found interesting. Not only did I find it interesting, but the lady who has been coming into court and leaving court with me is a French lawyer and so this case has been particularly interesting for her.