QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
|THE QUEEN ON THE APPLICATION OF HABEL||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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Mr P Greatorex (instructed by the Treasury Solicitors) appeared on behalf of the Defendant
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"The appellant has given a consistent account regarding his problems in Algeria. I was impressed with the way he gave his evidence in court and I have no reason to believe that he is other than a credible witness. It is clear that he is a strong Muslim and a person who is against injustice and violence. This is borne out by his opposition to the extreme policies of the government in banning opposition parties in 1991...
"As a result of his beliefs he has suffered short terms of detention and has been arrested for questioning about his involvement in protests against the government both following the election with the FIS who were banned, and military coup de etat."
His evidence which is at page 57 of the bundle paragraph 12 includes this:
"The authorities arrested the appellant and his brothers and detained him. He was interrogated, hit, tortured during the three days detention. However he was released without charge...
"He was transferred to Boufariq army barracks where he was detained until May. Whilst there he was tortured, fed sporadically, (only bread), sexually abused, and beaten."
"During my time in Hasandei I was subject to verbal abuse and beating. I had a beard. They said that I was an Islamist and proceeded to beat and torture me. They wanted to know what my relationship with the Student League was. I was of course not the only one held. 15 of us were held in a small cell. We were stripped and abused. They put my genitals inside a drawer and slammed the drawer. They put a soapy rag in my mouth which made me choke. I was beaten."
Although there is no specific reference to that part of the statement the appellant's evidence was generally believed. However, the adjudicator found against the Claimant on the basis that if returned he would not be at risk of ill treatment from either the government or the GIA. Paragraph 15 the adjudicator says:
"I find it is unlikely therefore he is regarded by the Algerian authorities as a threat to the state, a terrorist sympathizer, or someone who is anti-government. Consequently, therefore, there is little likelihood of him being stopped and questioned for these reasons upon his return."
So the adjudicator found against the Claimant and his appeal rights were exhausted on 1 March 2004. There was then no further activity of note save for an application on 30 March 2004, an application for humanitarian protection and discretionary leave to remain, which was refused on 7 September 2007.
"The Claimant's attempts to avoid return have been legion. The only new material is Ms Pargerter's report, but it adds nothing of substance, and Mr Mustefaoui's whose statement, for the reasons given in the Acknowledgement of Service (despite the somewhat infelicitous language in the decision letter), the Secretary of State was entitled to reject. Removal can take place forthwith"…
The latest application was rejected by two decision letters which are in the bundle dated 8 October 2009 and 29 October 2009. I merely refer to three points from that.
"The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered;
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."
In the recent decision of YH 2010 EWCA Civ 116, Carnwath LJ at paragraph 24 says:
"The cause of genuine asylum seekers will not be helped by undue credulity towards those advancing stories which are manifestly contrived or riddled with inconsistencies."
I also bear in mind in looking at the case generally the judgment given by Toulson LJ on behalf of the Court in AK (Afghanistan) and Secretary of State for The Home Department 2007 EWCA Civ 535, paragraph 22 which puts Rule 353 in context as being aimed at the mischief of an unsuccessful claimant seeking after he has exhausted the appellate process to begin the whole process all over again by making supposedly fresh claims without sufficient cause.
"First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nichol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision makers, the Secretary of State, the adjudicator and the court, must be informed by anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution."
Linked with that is the statement in AK, the reference to which I have already given which says this:
"Precisely because there is no appeal from an adverse decision under rule 353, the decision maker has to decide whether an independent tribunal might realistically come down in favour of the applicant's asylum or human rights claim, on considering the new material together with the material previously considered. Only if the Home Secretary is able to exclude that as a realistic possibility can it safely be said that there is no mischief which will result from the denial of the opportunity of an independent tribunal to consider the material."
"If it is, on the face of it, credible and if, despite the feeling that it might be disbelieved, it is not possible to say that it could not reasonably be believed, then as it seems to me, the decision ought to be based upon that state of affairs. The Secretary of State would be wrong to say, 'I don't believe it and therefore I am not going to regard it as a fresh claim'."
I have also been shown helpfully the Country Guidance in AF (Terrorist Suspects HS (Algeria)  UKAIT at 23 which specifically states:
"An appellant who can establish he has a history that suggests he may have connections with international terrorism is at real risk of being detained on arrival in Algeria, and investigated.
It is reasonably likely when the suspicion is of international terrorism such a returnee would be passed into the hands of the DRS for further interrogation."
Mr Greatorex on behalf of the defendant says this case does not come close to that.
"My interrogators produced a dossier which had a lot of photographs and details of people in it. Some showed pictures of men taken from both the front and the side like when someone is arrested and other photographs of people who I presumed had not been arrested."
He says he was shown about 25 photographs. At paragraph 11:
"The only person I recognised in the photographs that I was shown was Mourad Habel. I did not say that I knew him because I was scared. The photograph that I was shown was a front image of him."
He says in paragraph 16:
"I did not tell Mourad about this as soon as I returned because I did not want to scare him but I did tell him shortly afterwards."
So that means that the Claimant was told "shortly after" 12 May because at paragraph 15 the statement says that he arrived at Gatwick on 12 May 2006.
"…and [he] relies on me for support but he is quite a shy person who keeps things to himself. I sincerely believe that he would be in danger if he were to be deported to Algeria."
Finally, on this point, there is a statement from Mr O'Connor of Birnberg Pierce & Partners who have had conduct of the Claimant's case since 11 January 2009. He says:
"Among the previous solicitors' papers that I received from Mr Ahmed Habel was a letter dated 12 May 2008"
and he then contacted Mr Bendaoud.
"MI5 and the police when he was in detention. That is at Colnbrook Immigration Removal Centre near Heathrow."
Now 20 October 2008 happens to be the very date when the application was made for judicial review that was subsequently rejected by Collins J. The statement of Mr Habel, at paragraph 6 on page 83 of the bundle, goes on to say:
"They asked me many questions, for example what I knew about Al Qaeda in Algeria, which mosque I prayed at in London, whether I knew jihadists or people who would finance Jihad."
He says at paragraph 10:
"I believe they kept coming to see me because they believe I am in a 'sleeping cell' which I strongly deny."
So that MI5 activity which is neither admitted nor denied by the defendant finished some time ago and overlapped with the period when the previous application for judicial review was on foot but it was not brought to the attention of Collins J in dealing with that application.
"In light of this increased pressure the regime, (the Algerian regime) is particularly concerned about those Algerians who have been abroad for long periods of time and about their possible linkages to international terrorist networks. This has been evidenced by the arrests and charging of a number of returnees."
Then she sets out in some detail those facts.
The statement which is more material or the addendum report I should say is dated 11 March 2009. It is a supplementary to the previous one, it brings it up to date and at page 123 of the bundle paragraph 1 (ii) says:
"The Algerian authorities are particularly interested in those Algerians returning from long stays abroad, especially those coming from Europe that has traditionally been the main centre of opposition to the regime."
She also offers her views about what might happen to Mr Habel, but it is based on the premise at 1.iv and I quote:
"Given the regime's continuing interest in Mr Habel, they would consider him to be a useful source of information about other Algerians in the UK. It is therefore highly likely that they would try to extract information from him."
"Whilst I was at the court awaiting my hearing, (that is in Algeria) I was held in the court jail. It was while I was in the court jail that I met a man called Mr Reda Dendani.
Mr Dendani asked me a few questions and I confirmed that I was from the UK and then he asked me if I knew Mourad Habel. I confirmed that I knew him and then he told me that I should inform Mourad if I am released that he should not return to Algeria because it would be dangerous for him."
In relation to the visits from the security service, he says it is standard procedure that the security service neither confirmed nor denied that any visits have taken place. He contends also that whether or not they took place it cannot be assumed that the fact that someone is asked to assist the police or even the security service means that that person is under suspicion or that there is a connection between such a request and the risk of persecution faced by the Claimant in Algeria. He also draws attention to the fact that the last alleged visit was now some two years ago. If there was any real interest in him some action would have been taken against him.
"It is common ground no risk arises on his return to Algeria as a failed asylum seeker."
Secondly, on the question of credibility, in my respectful submission, it is not possible to find that in principle that no reasonable immigration judge faced with Mr Bendaoud's two statements could find him credible about what happened to him when he was detained. So we say for those two reasons, we would say taking into account those two areas which would be manifestly material, we say that the question of the risk arising from a consequence of both the MI5 matters and (inaudible) which were not envisaged by this court in its conclusions we say it is as a consequence of that permission should be granted.