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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Noune v Secretary Of State For Home Department [2000] EWCA Civ 306 (6 December 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/306.html
Cite as: [2000] All ER (D) 2163, [2000] EWCA Civ 306
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JISCBAILII_CASE_IMMIGRATION
Case No: C 2000/2669
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 6 December 2000
LORD JUSTICE SCHIEMANN
LORD JUSTICE TUCKEY
and
SIR SWINTON THOMAS
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SOUAD NOUNE |
Appellant | |
- and - |
||
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Nicholas BLAKE Q.C. (instructed by Glazer Delmar for the Appellant)
Rhodri THOMPSON (instructed by Treasury Solicitor for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE SCHIEMANN:
1. This is the judgment of the Court.
Introduction
2. The appellant is a citizen of Algeria, she claimed asylum here on 10th September 1996. That was refused by the Secretary of State. She appealed to the Special Adjudicator who found her to be a thoroughly credible witness in all respects, but dismissed her appeal. She appealed to the Immigration Appeal Tribunal who dismissed her appeal. She now appeals to us. There is no dispute as to the facts nor, as we understood matters, is the law substantially in dispute. The substance of the point made on appeal is that, accepting as it did the reliability of the appellant's evidence, the IAT's conclusion was one to which, if it had correctly applied the law, it could not have come. In those circumstances, we propose first to set out the law, then the Tribunal's decision, then the evidential material before the Tribunal, then the parties' submissions and finally our conclusion.
The Law
3. A refugee is defined by the Geneva Convention as a person who
Owing to well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion is
outside the country of his nationality and is unable, or, owing to such fear,
is unwilling to avail himself of the protection of that country[1]
4. In the paradigm case the persecutor is the Government or its
agents. That is not the present case. We are concerned with a case where the
persecution is by forces hostile to the government. It is established law that
a person can qualify as a refugee in such circumstances only if there is an
insufficiency of protection by the state against the hostile forces. But what
is sufficient in this context?
5. The Tribunal approached the case by applying the test to be found
in Horvath v Home Secretary [2000] INLR 15, a decision of this court
subsequently affirmed on appeal [2000] 3 WLR 379
"There must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and the courts, to detect, prosecute and punish offenders. It must be remembered that inefficiency and incompetence is not the same as unwillingness, unless it is extreme and wide-spread."
On the appeal, Lord Hope of Craighead said at page 383
"As Professor James C. Hathaway in The Law of Refugee Status (1991) page 112 has explained, "Persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the International Community".
At p. 135, he refers to the protection which the Convention provides as "surrogate or substitute protection", which is activated only upon the failure of protection by the home state. On this view the failure of the state protection is central to the whole system. It also has a direct bearing on the test that is to be applied in order to answer the question whether the protection against persecution which is available in the country of his nationality is sufficiently lacking to enable the person to obtain protection internationally as a refugee. If the principle of surrogacy is applied, the criteria must be whether the alleged lack of protection is such as to indicate that the home state is unable or unwilling to discharge its duty to establish and operate a system for the protection against persecution of its own nationals."
Lord Hope said at page 388:-
"The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected in the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state, rather it is practical standard which takes proper account of the duty which the state owes to all its own nationals...... We live in an imperfect world. Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection."
Lord Clyde at page 398 put it this way:
"There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case."
He then went on to approve the formulation of Stuart-Smith L.J. which I have already quoted.
6. Our attention was drawn to the following helpful statements of the law:-
".... the issue whether a person or a group of people have a "well-founded fear.... of being persecuted for ( Convention reasons) -...... raises a single composite question. It is .... unhelpful and potentially misleading to try to reach separate conclusions as to whether certain conduct amounts to persecution, and as to what reasons underlie it. Rather the question whether someone is at risk of persecution for a Convention reason should be looked at in the round and all the relevant circumstances brought into account", per Simon Brown L.J. in Sandralingham and Ravichandran v Home Secretary [1996] Imm AR 97, at 109:
"While..... it may well be necessary to approach the Convention questions themselves in discrete order, how they are approached and evaluated should henceforth be regarded .... as a unitary process of evaluation of evidential material of many kinds and qualities against the Convention's criteria of eligibility for asylum." Karanakaran v Home Secretary [2000] INLR122 per Sedley L.J. at page 155.
7. We were shown a collection of United States and Commonwealth authorities - in particular Canada (Attorney General) v Ward (1993) 2 SCR 689 and [1997] INLR 42, Singh v Ilchert 63 F. 3rd. 1501 and INS v Elias Zacarias 502 US 478 - dealing with the circumstances in which a person can legitimately claim to have been persecuted for reasons of a political opinion which is imputed to him by reason of his actions or inaction. Many of them are discussed in a useful starred Tribunal decision Guitierrez Gomez v Home Secretary which had not yet been handed down at the time of the argument before us. The Tribunal has helpfully adopted the system of starring decisions in order to indicate those cases in which it seeks, after a careful review of the law, to lay down broad principles, which are intended to guide adjudicators and others.
8. The principles of law relevant to the present case are as follows:-
1. The general purpose of the Convention is to enable a person who no longer
has protection against persecution for a Convention reason in his own country
("the home state") to turn for protection to the international community[2].
2. A claim cannot succeed under the Convention unless a person can show that he
has a well-founded fear of persecution because of a Convention reason.
3. The motives of the persecutor may be mixed and they can include
non-Convention reasons: it is not necessary to show that they are purely
political[3].
4. Political opinion may be express or imputed.
5. It follows that in order to show persecution on account of political opinion
it is not necessary to show political action or activity by the victim : in
some circumstances mere inactivity and unwillingness to co-operate can be taken
as an expression of political opinion[4]
6. If it is shown that there is a reasonable likelihood that the persecutor
will attribute a political opinion to the victim and persecute him because of
it, the fact, if it be a fact, that the persecutor would be in error in making
that attribution does not disqualify the victim from refugee status.
7. The persecution may be directly by the agents of the home state or by third
parties.
8. So far as injury at the hands of third parties is concerned, the
international refugee protection regime is meant to come into play only in
situations when the home state fails to provide for the potential victim the
degree of protection ("practical protection") which the international community
expects a state to provide for its citizens[5].
9. A state is not obliged to provide complete protection against isolated and
random attacks but it is under a duty to provide protection up to a practical
standard[6].
The Tribunal's determination
9. The Tribunal's determination went as follows:-
In her statement, made at the time that she claimed asylum, she said that she
had worked for many years for the Telegraphic Department in Algiers and
achieved the rank of Inspector. She had led a peaceful existence until an
incident occurred in November 1992.
She had then been confronted by masked men, who had tried to recruit her to
make use of her position with the Telegraphic Department in order to pass
messages to and from Japan and the Soviet Union. They had offered her
"protection" if she assisted in this way and had given her 48 hours to
consider. The appellant was understandably very frightened by this but
continued to work normally.
There was another incident 2 weeks later when there was a confrontation in a
taxi. She was told that she would be given 2 messages to send; to Moscow and
Tokyo. She was indirectly threatened with violence if she did not comply. She
did not do as she had been asked but took leave from work in a state of great
fear. She saw a doctor because of her nervous condition, and took sick leave
until June 1993.
She then went to Tunisia where she stayed for a year and four months, returning
to Algiers in November 1994 after the death of her father.
She spent time in Cyprus and in Tunis, paying several visits to Algiers to
visit her mother who was sick.
After her [10 day] visit to the U.K. in September 1995 she returned to Algiers
and resumed her work. Not long after that she started to receive threats.
These culminated with a serious threat made over the telephone and the
appellant, as a result, went to Tunis. She stayed there for three months on
this occasion, returned to Algiers for a week, then went back to Tunis. She
then was in a state of near nervous breakdown, staying only a few days before
returning to Algiers. She remained in Algiers for a month before travelling to
the United Kingdom [and claiming asylum]."
The Tribunal continued
We have proceeded on the basis that there was at least a reasonable likelihood
that the people threatening the appellant were proponents of the fundamentalist
cause.
The Tribunal, after referring to the decision of the Court of Appeal in Horvath
v Home Secretary, said that the appellant's counsel had submitted that:
"There had to be in place a justice system that provided reasonable protection
in practical terms. We agree with this proposition."
10. The Tribunal decision letter continues with the following
passages which we have numbered for the sake of ease of reference:
"1. The Algerian State has, according to much evidence, not been able to
prevent massacres of very large numbers of people..... [counsel] referred us to
a report by Professor Seddon which detailed extreme brutality both on the part
of the Islamists and Government forces. Professor Seddon in his report states
that :
"The State security forces are over-stretched and quite incapable of providing
protection to most of those at risk".
2. There is evidence of much social break-down and wide-spread violence and
danger within Algeria. However, we do not find that the background evidence
shows a total collapse of the State's protective machinery, albeit it is
over-stretched. And we of course have to consider whether there is a
sufficiency of protection specifically in the appellant's case. The
appellant's own account of events is relevant. It is significant that she
returned to Algeria on a number of occasions from Tunisia and she has never
experienced any violence herself.
3. The appellant, after the frightening incidents, chose not to tell her
superiors at the Telegraphic Department about the threats she had received.
She told the police, but did not persist with her complaint, believing that
they would do nothing to help her because she could not identify the people
involved.
4. We are not persuaded that the appellant's own experience shows an
insufficiency of protection; she has, we think, made no real effort to engage
protection by the Government authorities, and as a Government employee herself
there is no reason to suppose that there would be any lack of will to help
her.
................
5. The appellant herself related the threats she received to her
non-co-operation with requests by her tormentors to help them. There is no
suggestion that [the appellant] was the subject of these threats because of her
"Westernised" appearance or attitude. And there is nothing to suggest she was
herself threatened because she was a public servant; it was, as she understood
it, because she was not co-operating by sending messages for her tormentors.
6. In our opinion the appellant has failed to establish the Convention reason
argued for by [counsel] for the harassment she suffered. While we accept that
there is evidence that "westernised" women have been targeted within Algeria,
and that public servants may be targeted as such by people hostile to the
Government; we find nothing in the evidence to suggest that the appellant was
threatened for those reasons."
The Evidence
11. The crucial evidence before the IAT consisted of the appellant's
asylum application, the notes of her asylum interview, an expert report by
Professor David Seddon and a letter from the Deputy Representative of the
UNHCR. We set this material out fairly fully because there is no reason to
believe that the Tribunal found it unreliable and because, while the Tribunal's
summary is accurate, it does not convey the full flavour of life in Algeria as
portrayed in the evidence.
12. The asylum application contained the following passages which
amplify the Tribunal's recitation of the facts:-
In November 1992 [I was stopped on the way to work and ] found myself
confronted with three large men ... wearing masks of transparent stockings
.... One of the men spoke first and said: "You are Miss Noune Souay working in
the Central Telegraphic, living at 159, Avenue Ali Khudju el (Brai)." He said:
"You can see that I know you quite well. We do not intend to harm you or rob
you or ask you for money. We are an organisation working hard for Algeria and
its people that we well love". I replied: "Every citizen loves his country".
He followed my reply saying : "We need the help of persons such as yourself,
serious, competent and above all vigilant". I replied: "In what way can I be
of use, brother?" The three men exchanged glances and while one of them looked
away the first said: "We have some very important messages to be sent to Japan
and the Soviet Union: it is something you can do quite easily, perhaps one day
like Friday when you are settled in. It is a task that is going to be very
easy for you and will be of great help to us. You will send these messages
yourself and you will receive the replies the same way...." I replied naively,
"But you can post your messages in the post-office...." One of them spoke
up to say: "Stop playing the innocent. When I give you a job you must do it,
we know our job you must know yours. We offer you our protection and you will
also get a good reward". I replied: "It is because I know my work that you
make approaches to me to send your messages". The last to speak said finally:
"You have exactly 48 days (sc. hours) in which to consider, and they left as
quickly as they appeared .....