COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Asylum and Immigration Tribunal
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALLETT
LORD JUSTICE LAWRENCE COLLINS
| HF (ALGERIA)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPT
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James Strachan (instructed by Treasury Solicitors) for the Respondent
Hearing dates : Tuesday 24th April, 2007
Crown Copyright ©
Lord Justice Carnwath :
"… Kamal came under suspicion and he is now languishing in a prison on account of a political offence. The appellant has now obtained further documents from Algeria in relation to him being charged with possessing a judicial document and taking it out of Algeria. He has also been found guilty in absentia of illegal possession of a judicial file…. "
"On return, the appellant then fears the authorities and the GIA. He will most definitely not have police protection in the light of the case against him for taking the documents outwith the country. In addition, on return, he fears detention and ill-treatment." (para 26)
She referred to CIPU reports of conditions in Algerian prisons, and to UNHCR advice that rejected applicants should be returned "reluctantly" because of risk of "torture, disappearance or killing", unless they could be seen as "economic migrants". She said:
"However, this appellant cannot at all be regarded as an economic migrant. He had a good job, which he left out of fear from the GIA as he considered he could not be protected. Even if the appellant were not ill-treated by the authorities on return, he cannot expect any state protection on account of his theft of police documents. He will be at the mercy of the GIA, who will no doubt soon be aware of his return to Algeria." (para 27)
"I consider that the appellant runs a real risk of being sought out by the GIA on return on account of them seeking revenge against him for the ambush in 2003 and as they were unsuccessful in killing him in November 2003. The police will not offer state protection to the appellant given his theft of state documents. Internal flight is not viable in the light of a lack of state protection. The appellant has attempted internal relocation twice. How often does he have to try? It is unreasonable to expect the appellant to spend the rest of his life moving about the country to avoid detection by the GIA." (para 28)
"We think that the appropriate course is for the appeal to be heard afresh by an Immigration Judge other than Mrs Kempton. The assessment of risk in this case requires a comprehensive survey of the evidence and the findings of fact made by the Judge are inadequate to form the basis for a future reconsideration."
i) The Jordan panel erred in holding that there had been a material error of law in Mrs Kempton's decision;
ii) They erred in any event in ordering a full rehearing of the factual issues;
iii) On the rehearing, Judge Sacks erred in failing to make adequate findings as to whether HF would face oppressive treatment on return to Algeria.
i) Before a decision may be set aside on the grounds of error of law, the Court must be satisfied that the correction of the error would have made a material difference to the outcome or to the fairness of the proceedings.
ii) A finding may only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or is one that is wholly unsupported by the evidence.
iii) A decision should not be set aside for inadequacy of reasons, unless the decision maker has failed to identify and record the matters that were critical to his decision on material issues, in such a way that the reviewing court is unable to understand why the decision was reached.
The latter proposition is a synthesis of his earlier review of the authorities on reasons (para 11-14), in which he emphasised –
"… the anxiety of an appellate court not to overturn a judgment at first instance unless it really cannot understand the original judge's thought processes when he/she was making material findings." (para 15)
"14. The two substantive changes to the appeal structures under the 2002 Act and its predecessors… first, there is now only one appellate body to which an appellant can appeal from a decision of the Secretary of State, and, second, that the appeal to a second level specialist tribunal from the appellate authority has been replaced by the right to seek "reconsideration" of the appellate authority's decision if it has erred in law.
15. In one respect these changes replicate the previous position. Reconsideration is only ordered if there is an arguable error of law; and, on reconsideration, the first question that the Tribunal has to answer is whether or not there has been an error of law. It is only if it can discern such an error that it can proceed to "reconsider" the substance of the appeal. This is provided for in the rules to which I have referred, and is reflected in both practice directions."
i) A decision that the tribunal may have made an error of law, which might have affected the decision, leading to an order for reconsideration (in this case, the Casson decision);
ii) Reconsideration itself, falling into two stages:a) A decision that there has been an error of law (the Jordan panel);b) If so, reconsideration of the substance of the appeal (the Sacks hearing).
The "nub" of the problem in DK itself was the scope of the final stage.
"20… The jurisdiction is one which is being exercised by the same tribunal, conceptually, both at the first hearing of the appeal, and then at any reconsideration. That seems to me to be the key to the way in which reconsiderations should be managed in procedural terms.
22. As far as what has been called the second stage of a reconsideration is concerned, the fact that it is, as I have said, conceptually a reconsideration by the same body which made the original decision, carries with it a number of consequences. The most important is that any body asked to reconsider a decision on the grounds of an identified error of law will approach its reconsideration on the basis that any factual findings and conclusions or judgments arising from those findings which are unaffected by the error of law need not be revisited. It is not a rehearing …" (emphasis added)
"25…That assessment should prima facie take place on the basis of the findings of fact and the conclusions of the original Tribunal, save and in so far as they have been infected by the identified error or errors of law. If they have not been infected by any error or errors of law, the Tribunal should only re-visit them if there is new evidence or material which should be received in the interest of justice and which could affect those findings and conclusions or if there are other exceptional circumstances which justify reopening them."
"41. There is no doubt that the adjudicator's reasoning was seriously defective. However there is equally no doubt that the adjudicator had made a clear finding in paragraph 30 that the appellant's evidence was credible. It was because she found it credible that she concluded that he had a genuine subjective fear of persecution. The problem came when she turned to the question of whether or not, objectively speaking, he could properly be said to have a well founded fear of persecution….
42. However it does not seem to me that the error of law in any way vitiated the findings of the adjudicator as to the appellant's credibility. In those circumstances, there was no justification for directing that the whole of the appellant's appeal should be reconsidered including the issues of credibility. To that extent the Tribunal's decision is itself legally flawed. However, that did not preclude the Tribunal from considering whether or not the appellant's genuine subjective fear of persecution was well founded on the facts. That only partly involved an assessment of the appellant's credibility…." (emphasis added)
He concluded that the AIT had been entitled to find that the appellant could reasonably locate "in a country the size of Nigeria", and that "the passage of time meant that he was no longer at risk". That issue did not depend on the credibility of the appellant, but on "an evaluation by an expert Tribunal of the likely risks were this appellant to be returned to Nigeria" (para 43).
" 43. I would add this on the procedural aspect of the case. Had the Tribunal been right in its critique of the determination in relation to Rule 31(7), it should have included in its order a direction that the immigration judge who was to continue the reconsideration should do so on the basis that the facts found by Mr Ince were to stand save in so far as the issue to be reconsidered required their significance to be re-evaluated.
44. The reason why it is important to be rigorous about this is that reopening a concluded decision by definition deprives a party of a favourable judgment and renders uncertain something that was certain. If a discrete element of the first determination is faulty, it is that alone which needs to be reconsidered. It seems to me wrong in principle for an entire edifice of reasoning to be dismantled if the defect in it can be remedied by a limited intervention, and corresponding right in principle for the AIT to be cautious and explicit about what it remits for redetermination."
Scope of reconsideration
"… where Immigration Judge Kempton had not otherwise addressed the potential availability of state protection and internal flight on the facts because of her error regarding the effect of the criminal conviction, there were significant potentially unresolved factual issues about the Appellant's circumstances relevant to both state protection and internal flight. In this situation, the AIT is entitled to conclude the appropriate course for a reconsideration is to order the appeal to be heard afresh by a new Immigration Judge to enable a comprehensive survey of the evidence for an assessment of risk."
Treatment on return
"While in detention, as his wife told my sister Amina, my friend Kamal was taken by the officers of the Département du Renseignement et de la Sécurité (DRS)… to an unknown place – where he was tortured and forced to confess his political offence, effectively my friend Kamal under torture had told the Algerian authorities everything about the stolen file. The Court came to the conclusion according to what my friend had confessed under torture and passed – four years in prison – on me in absentia for political offence (illegal possession and smuggling abroad of confidential documents).
Now I fear the State authorities, and I am not able to avail myself of the protection of my own authorities because by doing so I will expose myself to torture and imprisonment for four years at the very least for crime I had to commit in order to support my asylum claim in the UK, and what happened to my friend Kamal would certainly happen to me were I to be returned to Algeria…. "
He referred to extracts from the CIPU report for October 2005 (para 6.16), which spoke of the use of torture by the Algeria authorities "in most cases… to extract statements or 'confessions' from persons held in custody…", and of "torture being used systematically in 'terrorism'-related cases and selectively in other political and criminal cases…" He also relied on an expert report by Professor Seddon, who referred to the "risk of brutal and inhumane treatment while in detention for four years". He said:
"It is highly likely that he would be detained at immigration, given his status as a failed asylum-seeker, for more detailed questioning, and that his criminal record would then become evident. At that point he would almost certainly be turned over to the police and judicial authorities and sent to jail… he might be liable to other charges brought against him by the Algerian authorities. There is ample evidence from a variety of sources (including reports by Amnesty International) that the treatment of prisoners in Algeria, particularly political and quasi-political prisoners and those associated with security breaches of which HF will be accused – continues to be poorly regulated and often in breach of basic human rights. Under the circumstances, he might expect brutal and inhumane treatment, even torture, at the hands of the Algerian prison authorities, were he to be returned to Algeria."
"I am satisfied, having considered all the objective evidence, that any conditions that the Appellant would have to endure, whilst they may not be as comfortable as in UK prisons, would not justify me coming to a finding that the prison conditions of themselves would breach the Appellant's Article 3 ECHR rights. Nor can I find any evidence which would satisfy me that this Appellant would be in any way abused or tortured during his serving of such a sentence to the extent that his Article 3 ECHR rights would be breached." (para 61)
Lord Justice Lawrence Collins:
Lady Justice Hallett: