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Special Immigrations Appeals Commission
You are here: BAILII >> Databases >> Special Immigrations Appeals Commission >> Sihali v Secretary of State for the Home Department [2010] UKSIAC 38/2005 (26 March 2010)
URL: http://www.bailii.org/uk/cases/SIAC/2010/38_2005.html
Cite as: [2010] UKSIAC 38/2005
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Appeal No: SC/38/2005
Date of Hearing: 1-5 March 2010
Date of Judgment: 26th March 2010
SPECIAL IMMIGRATION APPEALS COMMISSION
Field House
Breams Buildings
London
EC4A 1WR
Before :
THE HONOURABLE MR JUSTICE MACKAY
SENIOR IMMIGRATION JUDGE D. GILL
MR J. DALY
---------------------
Between :
MOLOUD SIHALI Appellant
- and -
SECRETARY OF STATE FOR THE HOME
DEPARTMENT Respondent
---------------------
---------------------
For the Appellant Mr M. Muller QC, Ms S. Harrison and Mr C. Grieves
(instructed by Tyndallwoods, Solicitors)
For the Respondent Ms L. Giovannetti and Mr R. Palmer (instructed by
The Treasury Solicitor)
Special Advocates Mr M. Supperstone QC and Mr R Pardoe
(instructed by the Special Advocates" Support Office)
---------------------
OPEN JUDGMENT
Page 1
Summary
1. This is the second hearing of Mr Sihali's appeal against the Respondent"s
notice of intention to deport him to Algeria. A previous SIAC hearing from
27 to 30 March 2007 considered whether he was not entitled to claim the
protection of Article 33(1) of the Refugee Convention as there were said by
the Respondent to be reasonable grounds to regard him as a danger to the
security of the UK. In its judgment dated 14 May 2007 SIAC held that
whatever risk to national security he may have posed in 2002 "the risk is now
insignificant". Accordingly, it did not dismiss his asylum appeal under section
55(4) and allowed his appeal against the decision to deport him on national
security grounds (only) notified to him on 15 September 2005.
2. The issue in the hearing before us is safety on return. On this issue SIAC
heard full evidence and argument and expressed certain views at [22-27]. We
approach this question taking into account both the evidence previously
available to this Commission and new evidence relating to events which have
occurred since the first hearing. We deal below with the approach we consider
we should adopt to previous SIAC findings of fact.
Background
3. The Appellant's relevant history is fully set out at [1-15] of the first judgment
in this appeal. This has not been the subject of challenge or dispute and we
therefore adopt it for the purpose of this renewed hearing.
4. The Appellant is now 32 and a citizen of Algeria. He left his native country in
1997 to avoid military service and travelled to England via Italy and France.
He entered the UK illegally with a false Italian identity card and went to
London. He befriended certain members of the Algerian community. His
association with two in particular, K. and Meguerba, more particularly set out
in the section of the first judgment which we have identified, led to his arrest
on 19 September 2002 and, in due course, to his standing trial charged with
conspiracy to murder and conspiracy to cause a public nuisance. He contested
those charges and was acquitted on both on 8 April 2005. He did, however,
plead guilty on 10 November 2003 to two counts of possessing a false
instrument with intent contrary to section 5(1) of the Forgery and
Counterfeiting Act 1981, namely two French passports in the names of Omar
Naitatmane (his cousin) and Christophe Riberro. He received a sentence of 15
months" imprisonment on each count concurrently. Had the provisions of the
UK Borders Act 2007 section 32 been in force he would, therefore, have been
liable to automatic deportation, albeit he could not have been removed if the
deportation order would have breached his Convention rights or the United
Kingdom's obligations under the Refugee Convention.
5. He had made an application for asylum on 2 October 2003 and received notice
of the Secretary of State's intention to deport him on 15 September 2005.
That asylum claim was overtaken by the Secretary of State's certificate dated
24 August 2006 under section 55 of the Immigration Asylum and Nationality
Act 2006 which led to the first hearing we have described above. Following
that hearing, on 16 January 2009 the Secretary of State notified the Appellant
Page 2
of his decision to give directions for his removal from the United Kingdom as
an illegal entrant without leave to remain and it is against that decision that the
Appellant now appeals.
Safety on Return
6. In his amended Notice of Appeal against the decision to remove him the
Appellant relies on two principal grounds. The first, referred to in argument
by Mr Muller QC under the heading of "validity", has not been argued in any
previous Algerian appeal concerning proposed deportations to Algeria in
reliance on assurances given by the Algerian government, sometimes called
the DWA ( for "deportation with assurances") Programme. The second which
has been called "reliability" in this appeal contains arguments familiar from
the previous decided cases on this issue.
7. The first of these grounds attacks the validity or lawfulness of the
Respondent's decision to rely on the assurances given in Mr Sihali's particular
case. He is the first appellant to be the subject of a decision to remove to
whom the DWA Programme has been applied but who has been found not to
constitute a threat to UK national security. Because of the nature of the
submissions supporting this ground, it will be necessary to set out at some
length the events which led to the giving of assurances in Mr Sihali's case
because it is argued on his behalf that to have sought them in the way that was
done was "not in accordance with law" and, therefore, SIAC should decide
his appeal as if they did not exist and had never been given. If that is the
course taken there could only be one result of this appeal, since it is and
always has been the position of the Respondent that it could not discharge its
obligations under the ECHR and the Refugee Convention by returning him to
Algeria without the protection of such assurances.
8. On 8 April 2005 the Appellant was acquitted of the very serious charges he
had faced in the so-called "Ricin" trial. He was released from prison having
already been remanded in custody for such a period that he had in effect
already served the 15 month sentences he received under the Forgery and
Counterfeiting Act charges. On 15 September 2005 he was given notice of
intention to deport him and was detained pending deportation, but was later
bailed.
9. The account which follows is heavily dependent on the evidence of
Mr Anthony Layden who has given evidence in the majority of the Algerian
cases heard by this Commission to date. He has provided ten generic witness
statements on the DWA Programme, its origins and development and three
witness statements specific to the Appellant. Much has been said about
Mr Layden as a witness before, but for two members of the Commission this
was their first experience of him. In our view, he was a highly impressive
witness of great experience and integrity. It cannot be said that he is an
independent expert (he himself readily accepts that this is so); he is employed
under a contract by the FCO having retired after 38 years in the diplomatic
service. His last posting was as HM Ambassador to Libya between 2002 and
2006. He is now the FCO's special representative responsible for the DWA
Programme. His expertise lies in his knowledge of the Maghreb region and, in
Page 3
particular, of the recent history and policy of the Republic of Algeria. He has
built up a close and trusting relationship with Maitre Amara, a senior Algerian
Judge on secondment as Director General of the Algerian Ministry of Justice.
Mr Layden impressed us as a candid and reliable witness, and a man of the
greatest experience in the ways of diplomacy, particularly in the Maghreb,
10. On 23 March 2006 the FCO sent to the Algerian government details of
seventeen Algerians who had received Notice of Intention of Deportation and
whose cases were before SIAC. The document summarised the British
government's state of knowledge of their respective activities. So far as the
Appellant was concerned, the note read as follows:-
"17. Moloud Sihali born in Boudouaou, 12 March 1976.
Another of the accused in the Ricin trial. One of the four who
were acquitted in April. Believed to be involved in providing
logistical support to members of proscribed organisations
belonging to Al Qaida. Connected with Djedid -¦ Khadri (aka
Toufiq) currently detained pending extradition to France on
terrorist charges, and Meguerba (currently detained in Algeria).
On bail."
11. The note then continued to give details of his parents and last known address
in Algeria. Mr Layden accepted that this information would make the
Appellant a person of interest to those who were concerned to protect Algeria
against terrorists, although he added that SIAC's later assessment put him
somewhere near the bottom of the scale. But that would not, of course, be
known to the reader of this note in March 2006 when it was sent.
12. By a Note Verbale 073/2006 the Algerian government was formally asked for
information relating to the Appellant in these terms:-
"- Confirmation that Mr Sihali is an Algerian national;
- Whether there are any outstanding convictions, criminal
penalties or criminal charges pending against him in Algeria or
whether the Algerian authorities envisage bringing any such
charges against him on his return, and, if so, details of the
penalties imposed or maximum penalties applicable to the
offences in question;
- Whether he would be detained on arrival in Algeria and, if so,
for how long, by whom and where;
- Whether the government of Algeria intends to extradite or
transfer him to any third country following his return to Algeria
(for example, has any third state submitted an extradition
request in respect of Mr Sihali);
- Whether and, if so, how the Charter of Peace and
Reconciliation might be applied to Mr Sihali."
Page 4
The Charter referred to was extensively described in Ouseley J's SIAC
judgment in Y dated 24 August 2006 as being the instrument through which
the head of state and government of Algeria sought to address and bring an
end to the problems that country had experienced as a result of the extensive
violence which had occurred in the 1990s.
13. On 11 July 2006 as a result of and indeed the culmination of extensive
diplomatic discussions, an exchange of letters took place between Prime
Minister Blair and the Algerian head of state, President Bouteflika, declaring
their shared intent to strengthen co-operation between the two countries, their
shared commitments to human rights and fundamental freedoms and
concluding:-
"Finally, the British government notes that, in particular in
cases relating to questions of internal security, it may,
depending on the circumstances, wish to request special
assurances from the competent authorities of the Algerian
government".
14. On 5 August 2006 by a Note Verbale 105/DGAJJ/06 the Algerian government
responded to the British requests in these terms, having confirmed the identity
of the Appellant:-
"Criminal status in Algeria:
-¦ Investigations concerning him carried out by the Interpol
NCB in Algiers have revealed that he was reported by the
British authorities for irregular residence.
Should the above named person be arrested in order that his
status may be assessed he will enjoy the following rights,
assurances and guarantees as provided by the Constitution and
the national laws currently in force concerning human rights:
(b) (sic) The right to appear before a court so that the court
may decide on the legality of his arrest or detention and
the right to be informed of the charges against him and to
be assisted by a lawyer of his choice and to have
immediate contact with that lawyer;
(b) He may receive free legal aid;
(c) He may only be placed in custody by the competent
judicial authorities;
(d) If he is the subject of criminal proceedings he will be
presumed to be innocent until his guilt has been legally
established;
(e) The right to notify a relative of his arrest or detention;
(f) The right to be examined by a doctor;
Page 5
(g) The right to appear before a court so that the court may
decide on the legality of his arrest or detention;
(i) (sic) His human dignity will be respected under all
circumstances."
We will call these the "original assurances" given in Mr Sihali's case.
15. Mr Layden was initially concerned for Article 6 reasons that there was an
absence of an unequivocal statement in this note that there were no
outstanding charges recorded against the name of Mr Sihali. He told us he
took the matter up with Me Amara, with whom he has had numerous contacts
over the period covered by this appeal, who explained that, because of the
system of recording convictions in Algeria, it was very difficult to make such
a statement. Mr Layden said that he, for his part, was only interested in the
sort of charges that would carry heavy sentences and would be relevant to the
kind of activities that they were thinking about. He satisfied himself that the
agreed form of words - subsequently repeated in the Note Verbale of 5
February 2007 - did not represent any attempt by Algeria to conceal anything,
but rather to say what they knew. It is not suggested that there were any such
convictions in point of fact.
16. In February 2007 Mr Amara visited the UK and was given a revised version of
the national security case that the Secretary of State was intending to present
in the upcoming hearing of Mr Sihali's appeal.
17. This was confirmed and summarised in a further Note Verbale in March 2007
which, in its relevant parts, read as follows:-
"The Embassy have been instructed to bring it to the attention
of the Ministry of Foreign Affairs and Ministry of Justice that
the national security case relating to Mr Sihali which the British
government is presenting in this hearing is slightly different
from the case of which the Algerian authorities were informed
in March 2006."
[The Note then referred to and summarised the previous Note of 17 March
2006 and continued]
"Following further consideration of the evidence available to it,
however, the case the British government is presenting against
Mr Sihali in the proceedings due to begin on 27 March 2007 is
slightly different. It is that he:-
(a) Has been involved in financial fraud and has been
convicted of offences relating to false documentation,
namely two counts of possessing a false instrument with
intent contrary to section 5(1) of the Forgery and
Counterfeiting Act 1981 -¦.
Page 6
(b) Is associated with several Islamist extremists in the UK
including members of a network formerly led by Abu
Doha (Amar Makhlulif) involved in terrorist planning,
including in the UK; and
(c) Has provided support in the form of facilitation to
members of the Abu Doha network. This including
fraudulent activity (e.g. helping Omar Djedid and
Mohammed Meguerba with financial applications under
alias names), documentation and accommodation which
were used for attack planning."
18. In cross-examination of Mr Layden exception was taken to the adverb
"slightly" in the passage set out above. We were not seriously concerned any
more than was Mr Layden by suggestions that this was other than a fair and
reasonable summary of the case the government was intending to put forward
at the hearing given in order to keep their Algerian counterparts as fully in the
picture as could be done.
19. The first judgment of SIAC in Mr Sihali's case was handed down on 14 May
2007 after having been circulated in advance in the normal way. Its
conclusion on the issue of national security was in these terms:-
"Whatever the risk to national security which he may have
posed in 2002, the risk is now insignificant".
20. Because of the conclusion reached on the national security issue it was
not strictly necessary to consider safety on return, but SIAC did proceed
to give its views having heard full evidence and argument on this issue.
It reached the same conclusion as previous SIAC decisions in Y, BB and
G , having taken into account events since those judgments as dealt with
in U . It concluded, having set out the information which had been
originally given in March 2006 by the British government describing the
role of the appellant in the Ricin affair:-
"That description would now have to be supplemented by a
copy or summary of SIAC's open judgment in these
proceedings. There is no reason to believe that the British
government will not modify its view of the appellant"s
activities in the light of this judgment; but even if it were not to
do so or the Algerian government were to choose to prefer the
original assessment, there is no reason to believe that he would
be detained, with a view to charging him, charged and
prosecuted for an offence under Article 87(a)(6) of the Algerian
Criminal Code. In the hierarchy of those so far returned, even
on the Secretary of State's original case, put at its highest, he
fell below V and K neither of whom have been charged."
20. In direct response to that judgment, the FCO lost no time in sending a Note
Verbale 04/07 on 14 May to the Algerian Embassy in London, to which note a
copy of the SIAC judgment was attached. This document was disclosed late
Page 7
in the course of the hearing. Before it emerged Mr Layden, when he first gave
evidence, did not believe a copy of the judgment had in fact been sent, but his
recollection was plainly at fault as he accepted when he saw it. After an
introduction summarising the progress in SIAC appeals so far, the Note read:-
"In the case of Moloud Sihali ("AA") heard in March this year
SIAC has concluded that the appellant could be deported to
Algeria without risk of ill treatment but found insufficient proof
of terrorist activity in the United Kingdom to order removal. A
copy of SIAC's open determination in Sihali's case is attached
to this Note Verbale. The British government is considering
whether to appeal against Judges" conclusion on national
security. In the interim you may wish to pass a copy of the
judgment to the relevant services in Algiers."
We consider this an accurate and sensible summary of what had happened.
The raw and unedited judgment may have presented difficulties of
comprehension even to a lawyer, if trained in the civil law tradition, as would
have been the case had the roles been reversed.
21. On 22 May 2007 the Secretary of State received advice from his officials not
to appeal the first SIAC judgment and no appeal has in fact been lodged.
22. There then took place on a date not established meetings between officials
from the FCO and the Home Office together with legal advisers. No minute
of this meeting has been found, though Mr Layden is of the belief that there
would have been one. It may have been the case that it was simply
incorporated into a submission to a minister. Mr Layden said the Home Office
took the lead and the purpose of the meeting was to consider whether it was
"proper or was going to be successful" to put a proposition requesting the
Algerians to renew the assurances in respect of someone no longer a threat to
national security. Mr Layden's own view was that it was "sensible and
appropriate" to ask them because Algerians tended to be a bit legalistic about
things and on occasions had been reluctant to go beyond what had been
strictly agreed initially. He accepted that to extend an agreement in a Note
Verbale requires bilateral consent. To the extent that there was any reflection
on the part of the FCO before supporting the Home Office suggestion we think
it was solely caused by their overriding concern not to disturb their good
relations with the Algerians by making excessive demands
23. As Mr Layden put it, the view at the time based on the developing relationship
with the Algerians was that they would not consider it inappropriate or
improper "and therefore it was okay for us to ask, provided we made it clear
that we were asking for them to renew the assurances on a different basis". It
was the Home Office who were making the case for removal and his role, as
he saw it, was to "advise on how it would go down with the Algerians". The
position the Home Office were in then was that here was somebody the
British government still wished to remove, who could not have been removed
because of his antecedents without a risk of ill treatment, but in respect of
whom assurances had been given by the Algerian authorities of a type which
SIAC had held were valid and reliable; so, as Mr Layden put it, "the question
Page 8
[was] whether it was appropriate for us to ask the Algerians to renew the
assurances on a different basis". He concurred with the proposition in the
light of his experience of the Algerians and his perception of their willingness
to assist the UK in matters of this kind. He thought it was worth asking them.
24. He also met with his interlocutor, Maitre Amara, on his next visit which was
not an occasion he could put a date to and, again, we have seen no notes or
minutes of that meeting. It seems to us that whatever its exact date, this
meeting must have come after the joint FCO/Home Office meeting described
above. He brought Amara up-to-date with the SIAC hearing and told him that
the Appellant's QC had expertly cross-examined the security service witness,
as a result of which there was no evidence they could point to to confirm that
the Appellant had knowledge that those he was assisting were engaged in
terrorist activities, in the light of which it was held that he posed no threat or a
negligible threat to the security of the UK in the future. Although there was
no record, he described his recollection of this meeting as "very strong and
clear".
25. In cross-examination Mr Layden was taken to task in respect of a witness
statement he had provided as a witness for the Algerian government in the
extradition proceedings in London concerning an Algerian named Khalifa
whom the Algerian government was very anxious to see returned to them to
face charges of large-scale fraud. In his witness statement Mr Layden had
included Mr Sihali's name as one of seven terrorist suspects. This was after
the first SIAC judgment. The context in which he included him was in a
passage designed to show in the extradition proceedings that six terrorist
suspects deported under the DWA Programme by Britain to Algeria had
experiences which showed that the Algerian government had honoured the
assurances given in each case. Mr Layden accepted he should have said that
the seventh (Mr Sihali) had been held not to be a national security threat and
he was inaccurate to that extent. We were satisfied that this was
understandable given the context in which the statement was made and, more
importantly, cannot see that it would as a mistake have damaged the reputation
of the Appellant in the eyes of the Algerian government in a way that was
contrary to the SIAC judgment. At all events, on 13 February 2008 Note
Verbale 08/08 was sent to the Algerian Ministry of Foreign Affairs reciting
that:-
"The Embassy informed the Algerian government on 15 May
2007 that the appeal hearing of Mr Moloud Sihali against
deportation to the People's Democratic Republic of Algeria
was dismissed by the Special Immigration Appeals
Commission on safety of return grounds and upheld on national
security grounds."
Having recited earlier Notes Verbales, the Note continued:-
"The United Kingdom would be grateful if the Algerian
government would confirm that the assurances provided in the
Ministry of Justice Note Verbale 105/DGAJJ/06 remain valid -
Page 9
notwithstanding the changed basis on which Mr Moloud Sihali
would be deported."
26. On 17th February 2008 the Ministry of Justice of Algeria sent a Note
37/DGAJJ/2008 confirming the assurances in terms identical to those in the
original assurances.
27. Mr Layden was taken to task for saying that the appeal had been dismissed on
safety on return grounds which he accepted was an inaccuracy. We do not
regard it as a material mistake since SIAC had gone out of its way to express
an opinion on this topic, but it was not the reason for its operative
determination. What matters is that otherwise, in our judgment, the note did
not do any violence to the terms of and the impact of the first decision. The
vital words are in the fourth paragraph, set out in the preceding quotation. It
was also objected by Mr Muller that the Note continued to assert that
Mr Sihali's continued presence in the UK "would not be conducive to the
public good" (in the original French "-¦ ne contribuerait pas á l"intĂ©rĂŞt
générale"). In our judgment, there was no material misrepresentation of the
case in this document. The Algerians would not have been familiar with or
interested in the niceties of UK immigration law, but would have received a
clear message that he was no longer viewed as a threat to the UK national
security and that it was proposed to return him on some different and less
serious basis. What mattered was that the Algerians should not get the
impression that they had been materially misled about the type of person for
whom they were being asked to provide assurances. The effect of [25-26] of
the first judgment (as Mitting J. plainly intended it to be understood) was to
re-assure the Algerian Government that Mr Sihali was neither a terrorist nor a
knowing accessory to acts of terrorism and that, in terms of the hierarchy of
those Algerians in London allegedly implicated in terrorism, he was to be
placed lower than V and K whose returns had already been effected
(respectively on 17th June 2006 and 24th January 2007). No charges of any
sort had been brought against either of these men.
Validity
28. Mr Muller, for the Appellant, says that the Respondent has ridden roughshod
over the DWA Programme and has applied and extended it to the Appellant
unlawfully, arbitrarily and indiscriminately with no intellectual justification
for so doing. He attacks the decision to seek and rely on new assurances, as he
describes them, in February 2008 which he says is an integral part of the
underlying immigration decision to refuse the Appellant's asylum and human
rights claims, as witness the refusal letter of 16 January 2009 which makes
express reference to the Note Verbale 08/08. He asserts that there existed a
positive policy not to seek such assurances in the case of an ordinary asylum
seeker who was not a national security suspect. The Secretary of State has
deviated from the publicly understood position he previously held, not to seek
assurances in asylum cases in the absence of a threat to national security "or
other major public interest", as Mr Muller put it. There is jurisdiction in SIAC
to consider what he calls the unlawful actions set out above by virtue of the
"not in accordance with the law" grounds of appeal found in section 84(e) of
Page 10
the Nationality Immigration and Asylum Act 2002, which are among the
grounds applicable to SIAC appeals by virtue of the SIAC Act 1997 section 2.
29. This line of argument is developed in three further ways by Mr Muller. First
he argues that the new assurances, as he categorises them, needed to be
sanctioned by a person in Algeria competent to do so and there is no evidence
that Maitre Amara was such a person. We see no force in this line of attack.
Mr Layden accepted in his evidence that Maitre Amara would have had to
obtain the Minister of Justice's approval on matters of principle. He accepted
that he did not have any direct knowledge of his having in fact consulted the
Minister about the Note Verbale of 17th February 2008 but, as he put it, he was
"pretty sure" that that was the case. All the Algerian assurances so far relied
on in other cases have been given over Me Amara's signature and have been
properly observed; none has been disowned or reneged upon. As Mr Layden
said, he had no reason on earth to suppose that Maitre Amara would have
behaved improperly over this particular Note. The Commission is aware that
the Note Verbale is the most formal means of communication used by
governments to deal with each other. The requesting party here would not
expect to see any internal paper trail within the Algerian Government
evidencing Maitre Amara's notification to his Minister or to other ministries.
For Mr Layden to have asked to see proof of it would have been a diplomatic
faux pas in our view. He knew his man and had been dealing with him on a
number of occasions over the last three years or so. We see no merit in this
particular line of attack.
30. Secondly, it is argued that if the Respondent has unlawfully relied on new or
renewed assurances obtained otherwise than in accordance with law then they
cannot be relied upon by him in this appeal. Depending on the circumstances,
one possible consequence of a Respondent's reliance on a decision made not
in accordance with a stated policy would be an order re-submitting the
question of the application of a policy to the decision-maker for him to review
it - see Abdi [1996] Imm AR 148 at page 160. There is also a helpful discussion
of this proposition in AG & Others [2007] UKAIT 00082 [50] - a judgment of
the Deputy President of the AIT. This option is not appropriate in the instant
case because there is a substantive appeal which raises the question of whether
there is a real risk of ill treatment and/or persecution, an issue with which we
must deal. Mr Muller invites us , if we are persuaded by his argument on
validity, to take the course of deciding this appeal, ignoring any assurances
and on the basis that there were none in existence at all. The result of that
exercise would be to require us to allow the appeal, since all accept that,
absent assurances, it would not be safe to return Mr Sihali to Algeria. We are,
therefore, invited to determine future risk knowing that we are making it on a
false factual basis, if we decide that the assurances are in fact reliable.
31. Thirdly, on a more narrow view, if we were to believe that the parties to the
assurances were not, as Mr Muller put it, "ad idem" then even if the
unlawfulness argument fails there may be a point which goes to undermine the
reliability of the assurances, with which topic we deal below. This is because
the Algerians might be able, once Mr Sihali is returned, to argue that he lay
outside what they understood to be the category of persons envisaged in the
Page 11
original DWA Programme. This argument also fails, in our judgment, for the
reasons we will give.
32. Mr Muller also argues that Mr Sihali's appeal should succeed on asylum
grounds because the very fact that assurances were sought indicates that the
Algerian Government, by definition, is not prepared to provide him with the
necessary protection and he, therefore, must be entitled to surrogate protection
within the terms of the Refugee Convention. However, the premise of Article
1A(2) defining a refugee for the Convention purposes requires there to be a
person who "owing to a 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 -¦.". If we are satisfied that
the assurances are valid and reliable it must be the case that Mr Sihali does not
meet that definition in that there are no objective grounds for that fear and the
assurances indicate that he is not in need of surrogate protection, as it has been
called in this appeal, since the Algerian Government has assured him that they
will protect him.
33. The Respondent argues that, as at the time the original assurances were sought
and given, no possible question of illegality arose or could arise. Ms
Giovannetti points out that these assurances are open-ended and have no
expiry date. There is no written policy, she argues, restricting the use to which
they can be put, albeit current practice is to confine their application to persons
presenting a risk to national security and not to what Mr Muller calls ordinary
asylum claims. That this is the case seems to us to be likely to be the result of
two factors:-
(i) As Mr Layden says in his written evidence, each one of these DWA
cases involves a significant expenditure of UK diplomatic time and
effort. It also must draw from the well of Algerian diplomatic and
political goodwill. We consider; the Algerians are likely, indeed
entitled, to hold the view that these particular arrangements are
primarily if not exclusively for the benefit of the UK and not them .
(ii) An "ordinary" illegal entrant who is a failed asylum seeker will not, of
course, usually need such assurances for his protection, by virtue of the
fact that his claim has failed.
34. To deploy DWA in the case of Mr Sihali is neither unfair nor contrary to the
purpose of the Refugee Convention, but rather is designed to ensure that he
can be returned compatibly with the United Kingdom's ECHR's obligations
and the terms of the Refugee Convention thus enabling him to return to the
country of his nationality. That seems to us an answer to the allegations of
general unfairness that Mr Muller says stem from the Respondent's actions.
The so-called "Eurostar point" advanced by him - that the Appellant could
move to a European country without a DWA Programme, and have an
unanswerable asylum claim - does not indicate that his treatment in the UK
has been unfair. He is only entitled to international surrogate protection if he
is at a real risk on return, and subject to the assurances themselves passing the
BB test considered below, he will not be.
Page 12
35. As to unlawfulness itself, after the first SIAC judgment there was, as it seems
to us, no "policy" available to the UK authorities covering the situation
Mr Sihali was then in. He was an applicant for asylum in respect of whom
assurances had been given and were still open, but these were based on
grounds of national security and he had been found authoritatively not to pose
more than a negligible risk on that score. The fact relied on by the Appellant
that one other successful Ricin defendant (Khalef) was not made the subject of
assurances so that his asylum claim went through the AIT cannot in any way
constitute evidence of some new policy as was suggested. In any case the
comparison with Khalef is not like for like; he had never been the subject of
assurances and had never been said by the UK to be a threat to its national
security. Mr Sihali, after the SIAC judgment, subject to his asylum
arguments, was vulnerable to deportation merely on the grounds that he was
an illegal entrant. SIAC acknowledged this [22] and canvassed the possibility
that he could be subject either to administrative removal or alternatively that
his deportation could be viewed as "conducive to the public good on grounds
other than national security". We believe that SIAC was there using the
language of English immigration law, but we do not think the Algerian
readers of that judgment, or indeed of the UK Note Verbale 08/08, would have
understood or even been interested in its precise implications or nice
distinctions. What they would have taken from the judgment and from the
Note was that he was not now being deported on national security grounds, but
on some other and less serious basis.
36. Therefore, the correct analysis of what happened in this case, in our judgment,
is that, absent any specific policy as to what should be done, Mr Layden and
the Home Office team decided that the "proper and appropriate" course was to
seek confirmation from Algeria of its position, for, in effect, the avoidance of
doubt. They sought no new assurances, for none were needed, nor did they
need to renew the old ones, for they were still live. They told the Algerians
what had happened, made it clear that the risk posed by Mr Sihali had been
downgraded and asked them to confirm that the original assurances still
applied. The response in terms confirmed that they did. There is no
difference whatever between the operative assurances contained in
37/DGAJJ/2008 and 105/DGAJJ/06 and the former is said in terms to be a
reiteration of the latter.
37. For these reasons, the appeal grounds based under the heading of validity must
all fail.
Safety on Return
38. The authorities are clear and to the effect that this is a question of fact not law
- see, for example, Lord Hoffmann in RB (Algeria) at [184-5]. The test to be
applied is that set out in Chahal v UK [1997] 23 EHRR 413 in these terms:-
"-¦ whenever substantial grounds have been shown for
believing that an individual would face a real risk of being
subjected to treatment contrary to Article 3 if removed to any
State, the responsibility of the Contracting State to safeguard
Page 13
him or her against such treatment is engaged in the event of
expulsion."
In Saadi v Italy [2008] ECHR 179 the ECtHR said that in making its
determination its examination of the existence of a real risk "must
necessarily be a rigorous one".
39. In RB Lord Phillips said at [114] that the Strasbourg jurisprudence did not
establish a principle that assurances must eliminate all risk of inhuman
treatment before they can be relied upon and continued:-
"if -¦ after consideration of all the relevant circumstances of
which assurances form part, there are no substantial grounds for
believing that a deportee will be at real risk of inhuman
treatment, there will be no basis for holding that deportation
will violate article 3."
40. This issue, therefore, being one of fact for our decision raises immediately the
question of the status of previous SIAC decisions on the self-same issue. Ten
previous cases have considered the reliability of Algerian assurances starting
with the very extensive judgment of the then President in Y given on 24th
August 2006 and running through to QJ on 14th December 2009. The decision
of BB on 5th December 2006 founded itself in large part on Y (BB at [7]) as
did the third determination in G. dated 8th February 2007 (see at [23)]. Ms
Giovannetti submits that while these and subsequent decisions are not binding
on us in this appeal, in a stare decisis sense, they constitute a body of
specialist decisions from which we should only depart if developments in the
law have changed the appropriate test to be applied or where significant new
evidence demonstrates a change in conditions in Algeria or places evidence
previously considered in a different light. Though these decisions are not the
equivalent of the Country Guidance cases in the old IAT, SIAC is an expert
tribunal assessing future risk and it is strongly desirable and in the interests of
justice that appellants should know where they stand. The findings have not
been tentative but are confidently expressed; in RB, which it is to be
remembered was approved by the House of Lords, Mitting J when considering
the key question of the reliability of the Algerian Government, given the high
level political impetus to strengthen ties between it and the UK, said:-
"It is barely conceivable, let alone likely, that the Algerian
Government would put them at risk by reneging on solemn
assurances. Nor is there any reason to suppose that the British
Government would turn a blind eye if they did".
41. We accept the thrust of these submissions. While it remains incumbent upon
us to look with care at the issue of safety in all its aspects and not merely to
rubber stamp previous decisions, the plain fact is that they constitute a
continuum of developing understanding and appreciation of the relations
between the two countries in this regard which simply cannot be ignored and
can safely be built on, in the absence of new evidence which undermines it or
calls for a new assessment to be made.
Page 14
42. That being so, in an appeal where the evaluation of governmental assurances
is critical, we propose to consider them in the light of the tests or yardsticks
suggested in BB at [5] and cited with apparent approval in RB by the House of
Lords [23] in this form:-
(i) The terms of the assurances must be such that if they are fulfilled the
person returned will not be subjected to treatment contrary to Article 3;
(ii) The assurances must be given in good faith;
(iii) There must be a sound objective basis for believing that the assurances
will be fulfilled;
(iv) Fulfilment of the assurances must be capable of being verified.
43. We should consider these in turn.
The terms of the assurances
44. SIAC has considered that this position is fulfilled in BB and G. and the Court
of Appeal has rejected an argument to the contrary as "fanciful" - see MT
(Algeria) v SSHD [2007] EWCA Civ 808 at [129]. The House of Lords took a
similar view in RB - see particularly Lord Hoffmann at [192].
Good faith
45. Hitherto SIAC has always accepted that these were given in good faith - see
BB at [16] and QJ at [17]. There has been no significant attack on the good
faith of the Algerian Government in the instant appeal and we agree with the
previous views expressed.
46. As to the UK's motivation and good faith in seeking confirmation that the
original assurances (themselves the subject of no form of attack), we have, we
hope, made it clear in our assessment of the evidence relating to the exchange
of Notes in 2008 that there is no room for any argument that the UK
Government was seeking to deceive or mislead the Algerians in any way. We
have also dealt above with the competence issue which immediately
distinguishes this appeal from the very different case of Ben Khemais v Italy
(application number 246/07).
47. We are, therefore, entirely satisfied, particularly as on 1st April 2008 the UK
Government notified the Algerian Government of its intention to rely on the
2008 Note and there was no form of protest in response to that notification,
that it is fanciful to suppose that the Algerian Government will at any future
stage jeopardise its developing relationship of trust with the UK by seeking to
argue that it was not bound by the assurances for these reasons.
A sound objective basis for believing that the assurances will be fulfilled
48. SIAC has found that it has been and remains in the national interest of Algeria
to comply with these assurances and that it has the ability to deliver them by
controlling the lower levels of its security forces. This, as it seems to us, is a
Page 15
key consideration when considering this issue. The Appellant rightly argues
that he will not benefit from the terms of the Charter of Peace and
Reconciliation. The passages in Y, however, analyse (particularly at [340-
350]) the importance of the Charter in the evolution of the political direction
in which Algeria is now travelling as part of its aim to become a normal and
fully-functioning civil state. We note the way it was dealt with at [374-5] and
[390-397] in that appeal.
49. There is new evidence in this appeal which goes to that issue. Mr Layden"s
tenth generic witness statement of 22nd January 2010 recorded that President
Bouteflika was now some nine months into his third five-year term as
President having been democratically granted an extension to the normal two
terms. The UK Secretary of State for Defence had made a formal visit on 27th
October 2009, the first visit by a British Cabinet Minister for three years, and
had had discussions with his opposite number and with the President.
50. Other matters of relevance covered in Mr Layden's latest statement were the
readiness with which he was granted the right to visit and inspect El Harrach
Prison (a visit with which we will deal below). He noted that in November
2009 two Guantánamo Bay returnees had been tried and acquitted of charges
of belonging to a terrorist organisation.
51. In general, there continue to be frequent violent clashes in Algeria principally
involving elements of AQIM and Algerian forces and Mr Layden did not
shrink from the position that this state of affairs is likely to continue for the
foreseeable future, as SIAC itself concluded in QJ at [22]. There is, however,
some evidence that the level of fatalities resulting from such incidents is on
the decline at the present time. Mr Joffee's evidence is now 9 months old and
has not been updated; it remains open to the comments made on it by SIAC in
QJ.
52. Political will apart, it seems to us that the best indicator of whether these
assurances will be fulfilled is the experience of those who have been returned
to Algeria to date. Again, this is a topic which has been exhaustively
considered in earlier judgments. We consider first the cases of Q and H.
These two were returned to Algeria on 20th and 26th January 2007 respectively.
Q was not the subject of any assurances, but H was. The evidence relating to
them is set out in SIAC's decision in U at [22-26] and its conclusions at [33-
36]. Those conclusions were that the Commission was not satisfied on
balance of probabilities that they had been exposed to the sounds of actual or
pretended ill treatment of others with the intention or effect of breaking their
moral resistance when in detention. The Commission set out their contacts
with family and lawyers throughout their pre-trial period. Q was charged five
days after he was first detained and was sentenced to eight years"
imprisonment on 22nd November 2007. H was charged 15 days after his initial
detention and sentenced to three years" imprisonment on 10th November 2007.
The decision in U and the first SIAC decision in this appeal were both handed
down formally on 14th May 2007.
53. While those decisions were in preparation Mr Sihali's solicitors received two
handwritten letters on 23rd April apparently in Q's handwriting which included
Page 16
the claim that he had been tortured, beaten and humiliated "in police station"
presumably referring to his initial detention in the hands of the DRS. The
solicitors delayed sending that to SIAC until 2nd May. This elicited an
addendum to the first Sihali judgment which noted the inconsistencies
between this claim and the description of Q by his lawyer, that he was
generally in decent health and was not claiming that he personally had been
harmed, with his sister's statement to the Embassy on 10 March that he was
well but not happy about his detention and with her statement to an Embassy
official on 23 April that he had not been mistreated apart from being placed in
a dormitory in the prison and made to take sleeping pills at night. The
conclusion was that the new allegation did not persuade the Commission that
there existed a real possibility of torture or ill treatment in the cases that they
were considering.
54. There is now before us a new witness statement from Gareth Peirce, a former
solicitor of Mr Sihali. She has made two previous witness statements on 19th
February 2007 and a second on 13th July 2009 in which she said both Q and H
had reported severe ill treatment during interrogation.
55. On the third day of the hearing before us a third witness statement was
produced by her. This hearing was the third adjourned hearing of this appeal
and the last adjournment was granted in July 2009 to enable further evidence
to be adduced. Not unreasonably, the Respondent complains about the
inability to investigate the new feature in her evidence.
56. That new feature is a document described as a report of Q's trial by a lawyer
present at the trial. He has asked to be anonymous and is not stated to have
been one of the two lawyers known to be acting for Q. This has not been
produced before despite the fact that it appears to have been in the hands of
Miss Peirce's firm for over two years. It describes the trial and says that Q
told the Judge that he had been tortured during his initial detention period and
he had signed confessions having been led to believe that that would enable
him to return home otherwise he would be returned to the torture centre at
Hydra.
57. This new evidence is confronted by the same problems as were faced by the
handwritten letters from Q, namely its inconsistency with the detailed and, to
an extent, documented evidence that does not include any evidence that he
made any contemporaneous complaints of such treatment, and that as late as
10th March he was well but not happy about his detention. We reach no
different conclusion from that expressed in the addendum to the first decision.
This is not evidence which constitutes substantial grounds for any conclusion
that there is a real risk of ill treatment of Mr Sihali if he is returned.
58. As to other persons returned to Algeria, I and V can be considered together. V
had no assurances. They were returned on 16th and 17th June respectively and
both were released well within the twelve-day limit on 22nd June. The British
Government believed that I was a senior figure in the Abu Doha terrorist
group and that he had committed fraud to obtain funds for terrorist purposes.
V was one of the accused in the Ricin trial against whom proceedings had been
discontinued. Amnesty International spoke to both men on release and neither
Page 17
made any complaint of torture or ill treatment, though Amnesty considered
this could have been "for fear of reprisals". Both were offered the opportunity
to contact the British Embassy in Algiers and neither availed themselves of
that offer. Amnesty said it would continue to monitor their situation and take
further action as necessary. It has not reported that any such action has
become necessary.
59. K had attempted, without success, to fight with the Mujaheddin in Chechnya
and was another associate of Meguerba involved in terrorist activity in London
which included an attempt by him to raise a five figure sum with the assistance
of Mr Sihali for terrorist activity. He was held for eleven days and released.
Mr Sihali has been found to have provided various services for V and K by
taking the lease on premises, helping K make his fraudulent loan application,
setting up a company and a bank account for Meguerba and K and letting V
use his bank account. SIAC has accepted that there is no evidence that
Mr Sihali knew these acts were intended to support terrorist activity. The
Algerians now have that judgment and will have read it. On any view, he is
much smaller fry than either of V and K and of significantly less interest to the
Algerians as a result. That in itself reduces the chances of a breach of the
assurances in his case.
60. P was deported on 27th January and released three days later. Maitre Amara
reported that his family was informed of his detention and were going to be
permitted to speak with him. There is no evidence of any breach of assurance
in his case.
61. X was deported on 6th June 2007 and released ten days later. He spoke to
Amnesty on his release and said he had been treated well and that his
interrogation had been conducted in a dignified manner.
62. A had been deported on 3rd July and was released five days later. He was
allowed, exceptionally, to speak to his brother for 15 minutes during his garde
a vue detention and there is no evidence of breach of assurance in his case.
63. Finally, Ben Merzouga was returned on 26th January 2010 and released nine
days later being returned to his family home.
64. We have dealt at some length with the experience of returned persons, as have
other constitutions of this Commission in the past, because they seem to us to
be useful objective evidence indicating that Mr Sihali's assurances are likely
to be fulfilled in the future. The Appellant puts up little by way of response to
this evidence save to say that the experiences of other returnees are peculiar to
them, there are difficulties of verification (with which we will deal below) and
the experience of Q and H suggests that the process is inadequate. We do not
agree and consider that it has been fully ventilated and explored in this and
other SIAC judgments.
Verification
65. The Appellant's argument is that a proper verification system acts as a
deterrent to would-be rogue DRS officers tempted to torture or ill treat the
Page 18
applicant on return. We agree with this proposition. It is the case, as Mr
Layden agreed, that his opposite number, Maitre Amara, has consistently
denied at their meetings that the DRS ever used torture, though Mr Layden
himself and most independent observers believe that they do and moreover
that it is a widespread problem.
66. Mr Layden accepted in cross-examination that the FCO's original position was
that independent monitoring akin to the OPCAT principles was the appropriate
verification system, as with all other DWA programmes. Algeria consistently
refused to countenance this in negotiations and in about 2006 the UK
withdrew its insistence on an independent system. The factors in that decision
were or included the fact that the Charter had released a very large number of
terrorist suspects from detention, many of whom were hard to distinguish from
the proposed returnees, and there was a growing trust between the two
countries. But we believe that the Appellant's argument is right; the main
reason was pragmatic in that the Algerians simply refused to move.
67. SIAC's decision in Y at [335-6] considered this issue and concluded that
Algeria's position was not sinister, but was the reaction of a "sensitive rather
prickly state" seeing the requirement as a slur on its record by a former
colonial power. This construction was followed in BB at [21] and we agree
with it.
68. In place, therefore, of independent monitoring the current system relies on
contact between families and Algerian lawyers with the British Embassy.
Embassy staff do not routinely visit prisons or attend trials of non-UK
nationals, but are in touch with NGOs such as Amnesty International and
Human Rights Watch. Mr Layden said that if there was a credible allegation
that a returnee had been ill treated they would treat that as good reason to ask
the Algerians to see the person concerned and he believed they would be
allowed to do so. If they did not and there was an apparent breach of the
assurances the first step would be to take the matter up with the Algerian
authorities at the level of Maitre Amara and, if his response was unhelpful or
unsatisfactory, it would be taken up at a higher ministerial level, if necessary
to the President himself. He has had discussions with the current Foreign
Secretary on this topic and understands him to support the principle that the
assurances should be supported, if necessary, by such action.
69. The contemporaneous documents dealing with the cases of Q and H and the
members of their family who were in contact with the Embassy show, in our
judgment, that there was a system in place which worked tolerably well even
if other returnees declined to use it. The Embassy staff appears to have been
in fairly regular contact with H's second brother, his mother visited him in
prison and Q's sister also availed herself of the system. At the Embassy end,
staff were briefed and prepared for calls. When Q's sister raised complaints
about the conditions in which he was held and his being forced to take
medication the matter was raised in a proportionate way with the Algerian
authorities and a response was obtained.
70. When SIAC in QJ asked that inquiries be made to ensure that those
responsible for prisons understood the importance of the assurances,
Page 19
Mr Layden was readily granted facilities in January of this year, as we have
already noted, to inspect El Harrach Prison where he and an FCO legal adviser
were given a comprehensive tour accompanied by the Prison Director, the
Director for Prison Security at the Ministry of Justice and the Resident Judge.
Mr Layden's tenth statement describes conditions in this old and overcrowded
prison. The impression he formed was, on balance, an encouraging one. Full
access was granted to all parts bar the womens" section and the buildings
though old were clean and well maintained. Prisoners were engaged in
constructive activities, mainly education and training, and did not appear
cowed in the presence of senior staff. There were 6 doctors and 3 dentists on
the staff and well equipped treatment rooms. The Director and his colleagues
expressed what appeared to be sincere enthusiasm for the ICPS programme
and the political commitment of their government to improving prison
conditions and respect for detainees" human rights The Minister of Justice had
recently instituted a new system for inspecting and monitoring prisons. An
allegation of torture against a member of staff (at a different prison) had led to
an investigation and the conviction and imprisonment of the man concerned;
the Minister was reported as affirming that no one whatever his rank could
mistreat prisoners and those who did would be punished by the law.
71. Mr Muller pointed out that there are methods of torture which cannot be
detected as they leave no visible trace which is undoubtedly true. That, of
course, poses a problem for any system of monitoring or verification, even by
independent inspection. The possibility, as was canvassed, that perceived
human rights abuses in the wider region which have been well publicised and
laid at the door of the UK or its close allies might result in returnees" next of
kin having less confidence in the British officials" desire or ability to prevent
ill treatment does not strike us as a real risk. The DRS officers on the ground
and those who are responsible for their discipline and behaviour would not, in
our judgment, take such matters into account when deciding whether or not to
breach the assurances their Government have given.
72. In RB Lord Hoffmann said at [193] that there is no rule of law that external
monitoring is required; the question depends upon the facts of the particular
case, and that SIAC was entitled to say in RB's case that though there must be
a capacity to verify fulfilment of the assurances:-
"external monitoring is only one possible form of verification.
In this particular case, the Algerian Government regarded
external monitoring as inconsistent with its sovereign dignity
but SIAC considered that there were other ways in which non-
compliance was likely to become known and, given the
political incentives, these were sufficiently likely to ensure
compliance. This was a carefully balanced finding which I
think was open to SIAC on the evidence."
73. The position in this appeal on this topic is no different from that which
prevailed in RB's case and our judgment is the same. We are satisfied that
verification of the fulfilment of these assurances is capable of being achieved
by the means currently in place and by the determination of Mr Layden to
Page 20
ensure that significant breaches do not go unreported, but are pursued in a
vigorous manner.
Articles 5 and 6
74. The first SIAC judgment said that there was no reason to believe that, if
returned, Mr Sihali would be detained with a view to charging and
prosecuting him under Article 87(a)(6) of the Algerian Criminal Code. There
is no new evidence or argument on this point which inclines us to revise that
finding or that such prosecution, if brought, would contravene the double-
jeopardy principle.
75. There is no record of any charges or convictions recorded against him in
Algeria. As already noted, his position in contradistinction to H, Q, K and V
suggests that he will be of considerably less interest to the Algerian authorities
than were any of them.
76. The test set out by Lord Phillips in RB at [140-141] was that there must be
substantial grounds for believing that there is a real risk, first ,that there will be
a fundamental breach of the principles of a fair trial guaranteed by Article 6
and, secondly, that this will lead to a miscarriage of justice that itself
constitutes a flagrant violation of the victim's fundamental rights in that the
defects in the trial would lead to conviction and a sentence of many years"
imprisonment.
77. We, therefore, consider that there is no real risk of an Article 5 or 6 breach
principally because it is highly unlikely that Mr Sihali will be prosecuted at all
upon return. If he is, the risk of double-jeopardy which is relied on by the
Appellant is no different from that considered in QJ at [31-37] and leading to
the conclusion, with which we agree, that:-
"If Algerian law permits a person acquitted abroad to be
prosecuted for and convicted of a similar offence in Algeria his
trial there would not be flagrantly unfair-¦ If as a result of his
conduct in another State he has made himself liable to
deportation from that State he cannot resist deportation on the
ground that it may have that consequence".
In any event the evidence that might be obtained from Meguerba, even if
extracted under torture, is unlikely to incriminate or imperil Mr Sihali for the
reasons given in the first judgment. All that he could say is that he and K were
allowed by the Appellant to live at the flat he obtained in Elgin Road, which is
already well known to the Algerian authorities,.
Military service
78. No separate argument has been directed at the hearing or in the written final
submissions on this issue. There is, in our judgment, no probability that his
claimed failure to have completed military service will lead to ill treatment or
persecution. Mr Layden was not asked about this matter, in respect of which
there is some evidence that he might now be able to take advantage of an
Page 21
amnesty but, at worst, he would suffer up to two years" imprisonment as a
consequence.
Article 8
79. Again, we have received no separate argument on this issue. The Appellant in
his witness statement of 14 July 2009 says he has been living in the UK for
some 12 years. He has, however, spent the last seven years or more either
remanded in custody or on stringent bail conditions. He has given no evidence
about the quality or strength of his private life in the UK. For example he has
not described any links to the community and the only family he has of which
we are aware is in Algeria. Such medical evidence as there is comes from Drs
Kelland and McKeith and is now well over four years old. If he needs
medication we are satisfied he will get it in Algeria as did H, according to his
lawyer Mr Tahri.
80. We are prepared to accept that removal would interfere with his right to
private life, given the low threshold for the second step of the five-step
approach explained by Lord Bingham in Razgar [2004] Imm AR 381 at [17]. We
have rejected the argument that the decision is not in accordance with the law.
The fourth and fifth questions (taken together) involve conducting a balancing
exercise ( EB (Kosovo) [2008] UKHL 41). The legitimate aim in this case is
the maintenance of immigration control. We take into account the lack of any
evidence about the nature of the Appellant's private life in the UK and the fact
that he would be entitled to some private life in Algeria, which possibly (we
put it no higher than that) may be enhanced by his being reunited with his
family. In all the circumstances we find that Mr Sihali can reasonably be
expected to enjoy private life in Algeria. In any event and for the same reasons
we find, balancing the factors in his favour against the state's interests, that
removal would not prejudice the private life of Mr Sihali in a manner
sufficiently serious so as to amount to a breach of the fundamental rights
protected by Article 8.
Conclusions
For all the above reasons we are satisfied that the Respondent's decision in this
case was in accordance with the law and that if he is removed to Algeria there
is no real risk that he will suffer a breach of his rights under Articles 5, 6 or 8
of the ECHR or treatment amounting to persecution, or of treatment in breach of
Article 3. This appeal is therefore dismissed.
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