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Cite as: [2004] UKIAT 00118, [2004] UKIAT 118

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APPEAL No. BA (Perceived bias – Israel – Gaza) Israel [2004] UKIAT 00118

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 29 March 2004

Date Determination notified: 27 May 2004

Before

Mr H J E Latter – Vice-President

Mr C Thursby

Between

BA	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr B Lams of Counsel

For the Respondent: Mr L Parker, Home Office Presenting Officer

DETERMINATION AND REASONS

The Appellant who is a former resident of the Gaza Strip, appeals against the determination of an Adjudicator, Mr M Shrimpton, who dismissed his appeal on both asylum and human rights grounds against the decision made on 11 February 2003 giving directions for his removal following the refusal of his claim for asylum.

Background

The Appellant arrived in the United Kingdom on 15 December 2002 using a forged passport supplied by an agent. He was accompanied by his brother Mohamad. The Appellant claimed asylum on 17 December 2002. His claim was refused for the reasons set out in the Reasons for Refusal Letter dated 7 February 2003. The Adjudicator heard the appeal against this decision on 15 August 2003.

The basis of the Appellant's claim can briefly be summarised as follows. He was born on 26 February 1978 in Rafah in the Gaza Strip. His father had been born in Haifa but was forcibly displaced from there with his parents in 1948. The Appellant attended a primary school for refugees from the age of 6 until 1990 when he attended an intermediate school for boys until he was 16. He then worked with his father until he left.

In his statement in support of his application for asylum the Appellant says that there were always clashes between Palestinians and the Israeli forces in the Gaza Strip. The Israelis were always shooting at the Palestinians and would use the area where they lived as a firing range. As a Palestinian his freedom of movement was restricted. If he wanted to go to any other Palestinian town he needed permission from the Israeli authorities and would have to go through their checkpoints. If he did so he would be exposed to humiliating and degrading treatment. There was an occasion when he was 15 when he went with his school to Khanyounis. He had to undergo a full search by Israeli soldiers and was made to wait in the hot sun until they had finished with him. In March 1998 his school arranged a protest against the Israeli occupation. Israeli soldiers fired into the crowd of students and his brother Mohamad was hit by an M.16 bullet. His condition was critical. He was taken to hospital where he stayed for one month before he was discharged. He then rested at home for another one-and-a-half months before returning to school.

The Appellant described living in the Gaza Strip as unbearable and like living in a big prison. He was unable to visit holy places such as Jerusalem, Ramala and Bethlehem. He has been persecuted because of his race as a Palestinian Arab living in Palestine. He was not able to go where he wanted or to be free. He had never joined any of the militant groups such as HAMAS or the Islamic Jihad Movement. His situation had always been unbearable but became worse after October 2002 when his home was bombed by Israeli tanks. The family left the house and went to hide in surrounding streets. When they returned the following morning they found that their house had been bombed. It had caught fire and had been destroyed. Following this incident his father contacted an agent to arrange for the Appellant and his brother to leave. They were taken through a tunnel into Egyptian territory and then driven to Cairo. On 15 December 2002 they travelled by plane to the United Kingdom. They did not claim asylum at the airport but a day or so later they were advised to make a claim at Croydon.

The Adjudicator was prepared to accept the Appellant's account at least to the lower standard of proof required in asylum appeals. He found that none of the acts complained of by the Appellant even arguably amounted to persecution. He had never been detained or ill-treated by the Israeli government. On his own account he had been searched at a checkpoint when he was 15 but this was to establish his identity and to ensure that he was not carrying weapons. The restriction on movement did not amount to persecution. The Appellant acknowledged that he had never been politically active and had said that his home was attacked at random. The Adjudicator was satisfied that the Israeli occupation of the Gaza Strip was lawful and in these circumstances the Israeli authorities were entitled to take proportionate measures within the occupied territories to protect its own civilian population and to respond to the threat of terrorism. The Appellant did not establish that he was at a real risk of persecution nor that any risk would arise for a Convention reason. The appeal was dismissed on both asylum and human rights grounds.

The Grounds of Appeal

In the grounds of appeal it is argued that the Adjudicator wrongfully failed to recuse himself given his recent personal contact with the Israeli army and Israeli government officials and historians. In his determination the Adjudicator had referred to the fact that he had recently received a briefing from an IDF checkpoint and had had discussions with senior Druze IDF officers. When considering the legality of the occupation the Adjudicator had referred to a respected Israeli historian whom the Adjudicator "had the great privilege of meeting" in Jerusalem in June 2003. It is argued that these comments give rise to a perception that there was a real possibility of bias. The Adjudicator had erred by not withdrawing from the appeal.

The second ground argues that the Adjudicator erred in law by taking irrelevant matters into consideration. This refers to the "floodgates" argument arising from the Adjudicator's comments in paragraph 7 and particularly in paragraph 67 that if the Appellant were allowed asylum "any and every ethnic Palestinian in the Gaza Strip" would similarly be allowed asylum. The Adjudicator is criticised for commenting that such a state of affairs might lead to loss of life through increased use of the secret tunnels between Gaza and Egypt. The third ground argues that the Adjudicator erred in law in his consideration of the Amnesty International report. He failed to obtain Home Office information if it was felt necessary to reach a balanced view. He was wrong in his consideration of the legality of the occupation of the Gaza Strip.

Submissions

Mr Lams adopted these grounds in his submissions. He argued that the appeal should be remitted for a fresh hearing because there had been a perception of bias which had affected the Adjudicator's reasoning process. The perception of justice was paramount. He submitted that the Appellant should be restored to the best possible position where there were doubts as to whether he had had a fair hearing. The Tribunal should make a point of remitting the appeal for this reason.

On this issue Mr Parker submitted that there was no reason for the appeal to be remitted. The Adjudicator had made a positive credibility finding: the Tribunal should proceed to consider the appeal on its merits.

The Tribunal indicated to the representatives that it was not our view at this preliminary stage that a remittal was necessarily the most appropriate way of disposing of the appeal and that we wished to hear full arguments on the merits before making our decision.

Mr Lams referred the Tribunal to Gashi (13695) and in particular to the Tribunal's adoption of Professor Hathaway's categorisation of rights. He submitted that there would be a breach of all three categories of right if the Appellant were to be returned to the occupied territories. There was a persistent denial of rights within categories 2 and 3. The judgments of the Court of Appeal in Ravichandran [1996] Imm AR 97 were not inconsistent with this categorisation. When assessing whether the actions of the Israeli authorities in the Gaza Strip would amount to persecution, it was important to consider whether the actions were intentional, unlawful, prolonged and discriminatory. The floodgates argument had no place in this assessment. The reality of the situation in Gaza had to be considered. The motivation behind their actions of the authorities was relevant: see the judgment of Simon Brown LJ in Ravichandran. There was a policy of collective punishment confirmed by the Amnesty International report. The international community did not recognise the legality of the Israeli occupation. It was the 1967 borders which were internationally recognised. The occupation was in breach of Resolution 242. The conditions affecting the population were intolerable. Violence was caused by the establishment of unlawful settlements which the Israeli authorities then sought to protect by acts such as targeted killings and the demolition of property.

Even if the actions of the Israeli authorities were legitimate, the extent went beyond any permissible basis. It was not lawful to impose collective punishment on sections of the population. The policy of destroying houses was specifically intended to deter other potential attackers. The Adjudicator was wrong to reject the evidence from Amnesty International. The Appellant would be at risk firstly as a resident and secondly as a young male resident.

Mr Parker submitted that regardless of the legality of the occupation, the Israeli authorities have governed the territories within the requirements of the relevant Hague Conventions. Israel inevitably had an interest in maintaining its borders and targeting terrorists. Looking at the facts as they related to the Appellant there would be no breach of the rights described in Gashi. The Appellant had never been arrested or detained save for the incident at the checkpoint in 1995. He had been able to work for his father after he was 16. It could not be said that he had been deprived of employment. He had been able to receive an education until the age of 16. His brother had received proper medical care after he was shot.

So far as the incident relating to the Appellant's home was concerned, there was no evidence to indicate any specific targeting of him or his family. There was no reason to believe that the Appellant would have particular problems on return. The general conditions were not such that it could be said that there was a specific risk to him amounting to a real risk of persecution or treatment contrary to Article 3.

In reply Mr Lams submitted that even if the Israeli authorities were acting subject to the Hague Convention on war, this did not establish a sovereign right to occupy. These Conventions covered the conduct of their armed forces but did not support a contention that the occupation itself was lawful. There had been no revocation of Resolution 242. The Appellant fell within a category of people at risk: as a resident or as a young male resident. He had been personally affected as evidenced by the demolition of his home which was his motivation for leaving. There would be a real risk that he would be caught up again in actions imposing collective punishment on Palestinian residents.

The Allegation of Bias

The Tribunal will deal firstly with the issue raised in ground one that the Adjudicator should have recused himself and that his determination is vitiated through apparent bias.

The grounds set out the relevant test formulated by Lord Philips MR in Director General of Fair Trading v Proprietary Association of Great Britain [2001] 1 WLR 700 at page 721:

"The Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the Tribunal was biased."

The argument is based firstly on the fact that the Adjudicator has had recent personal contact with the Israeli army and Israeli government officials and historians. The Adjudicator disclosed in paragraph 13 of his determination that he had recently visited the occupied territories and observed a checkpoint in action on the West Bank at Janine as part of an international group of lawyers who received a briefing from the checkpoint commander. When assessing in paragraphs 42-61 of his determination the legality of Israel's occupation of the Gaza Strip, the Adjudicator refers in paragraph 47 to the fact that he had had "the great privilege" of meeting Dr Oren in Jerusalem in June. Dr Oren is an Israeli historian who edited, "Six Days of War". It is argued in the grounds that the Adjudicator does not disclose whether he himself has any personal or cultural ties to Israel or the purpose or ambit of his visit to the West Bank. There is no indication that the Adjudicator talked to any members of the Palestinian authorities during the visit and it is pointed out that he described Fatah as a terrorist organisation in paragraph 27 of his determination. It is correct that the Adjudicator said that he regarded Hamas and Fatah as paradigm terrorist organisations applying accepted definitions in public international law. These comments were made in the context of the Adjudicator's criticism of an Amnesty International report to which he was referred. The Adjudicator also refers in paragraph 64 of his determination to the fact that there are a number of Druze officers in the IDF. The Adjudicator goes on to say that he is not sure whether they are referred to in the background material and that he is in part relying on his own personal experience of discussions with senior Druze IDF officials but he understands that they are particularly respected.

It is not clear from the determination or from the grounds whether the Adjudicator raised this issue at the hearing. In paragraph 13 the Adjudicator acknowledged the importance of disclosing to representatives if he had recently visited the country in issue. He indicates that he in fact visited the West Bank not the Gaza Strip as part of an international group of lawyers which received a briefing from the checkpoint commander. He would have recused himself had he met or had any dealings with any Israeli soldier or commander involved in any operation concerning the Appellant or any member of his family or for that matter if he had witnessed operations at the particular checkpoint near Khanyounis. However, he had not visited the Gaza Strip only the West Bank many miles away from the area under discussion in the appeal.

In our judgment the fact that the Adjudicator was part of an international group of lawyers which paid a visit to the West Bank would not indicate to a fair-minded and informed observer that there was a real danger of bias when assessing a claim relating to a resident of the Gaza Strip. The Adjudicator's reference to having the great privilege of meeting Dr Oren does not seem to us even arguably to indicate bias. It is clear from paragraph 47 that the Adjudicator did make clear to the Appellant's representatives the material on which he was proposing to rely. The fact that the Adjudicator may have met Dr Oren during this visit seems to us immaterial. The issue is whether the Adjudicator was right to find that the Gaza Strip was lawfully occupied by Israel following the six day war in 1967 and if so, the relevance to this appeal.

When assessing whether there would be a real possibility of bias it is important to take into consideration what the Adjudicator said about the Appellant's own account of events. It is clear from paragraph 30 that the Adjudicator was prepared to accept that account to the appropriate standard of proof in asylum cases. Can it seriously be said that a fair-minded observer would conclude that there was a real danger of bias in circumstances where the Adjudicator believed that what the Appellant had said was or might be true? By inference it is argued that the Adjudicator's sympathies for Israel prevented him from making a fair assessment of the risk to the Appellant on return to the Gaza Strip. We are not satisfied that this is even arguably the case. The fact that the Adjudicator has paid a visit to the West Bank as part of an international group of lawyers and has met a leading Israeli historian does not in our view indicate that the Adjudicator was biased in his assessment of risk nor would there be any perception of bias.

In this context it is also argued that the Adjudicator was unduly influenced by the "floodgates" argument when he commented in paragraph 22 that if the Appellant was persecuted by the Israelis within the meaning of the 1951 Geneva Convention then so was every other Palestinian resident in the Gaza Strip. Neither Adjudicators nor the Tribunal are concerned with numbers. We are concerned with whether the individual applicant in any particular appeal is at real risk of persecution on return. It may be that an applicant can show that he falls within a category at real risk or it may be that his own personal profile and circumstances put him at risk. Each case must be looked at on its own merits. The only use of a "floodgates" argument is to test the validity of an argument put forward on behalf of an applicant. The Tribunal is not satisfied that it is arguable that the Adjudicator applied some sort of numbers test or similar policy consideration as part of his reasoning in concluding that the Appellant did not qualify for asylum.

In summary the Tribunal is not satisfied that the allegation of perceived bias is made out. Even if it was, in the light of the Adjudicator's findings of fact there is no good reason why the Tribunal should not go on to assess risk in the light of the current background evidence. Mr Lams argued that the Appellant should not be deprived of a full and fair hearing before an Adjudicator with its consequential right of appeal to the Tribunal. However, that right of appeal can now only be exercised on a point of law and the Appellant has in any event a similar right of appeal from this Tribunal to the Court of Appeal. The Tribunal is not satisfied that there is any good public or judicial policy reason for remitting the appeal for rehearing.

The Other Grounds

The Tribunal will now turn to the merits of the arguments relating to the assessment of risk on return. We have already touched on ground two which argues that the Adjudicator erred in law by taking irrelevant matters into account, the floodgates argument referred to in paragraph 67. The Adjudicator described the suggestion that any and every ethnic Palestinian living in the Gaza Strip was entitled to leave and present themselves at the frontiers of a Convention State and insist on being granted asylum as an irresponsible proposition firmly to be discounted. As the Tribunal have already indicated each case must be determined on its own facts. The Adjudicator did comment that such a finding may lead to illegal movement across the Gaza Strip and into Egypt and that it would be very difficult for a border guard to tell the difference between an unarmed asylum seeker and an armed terrorist and perhaps suicide bomber. These comments may or may not be right but they are not material to the proper disposal of this appeal. We note that they follow the Adjudicator's reasons for finding that the Appellant could not demonstrate either persecution or a Convention reason. The Tribunal is not satisfied that the Adjudicator took into account what ground two describes as public policy issues in his assessment of whether the Appellant was entitled to asylum.

The third ground argues that the Adjudicator erred in law in his consideration of the Amnesty evidence. The Adjudicator was critical of the Amnesty International report adduced in evidence. In paragraph 26 he said that it was overstating the case to describe that evidence as objective. The Amnesty report referred to Israeli soldiers "often" using "Palestinians as human shields". The Adjudicator commented that the Israeli government would take issue with that description. The important sentence is the one which follows that comment. The Adjudicator said that it by no means followed of course that the Israeli government would be correct but that it was impossible to describe the view of Amnesty International as balanced and objective. He also took issue with the description of "Palestinian armed groups" which in his view in reality were terrorist organisations. The Adjudicator did not accept the conclusions under the headings "Killings by the Israeli army" at page 60 of the Appellant's bundle of evidence. He commented that he would much prefer to have the Israeli government's point of view but he qualified that remark by saying that that was not because it should be automatically accepted, plainly that would not be right but because it would enable him to reach a balanced judgment. The Adjudicator clearly accepted that he had to determine the appeal on the evidence he had. He is entitled to make comments on the objective evidence and the Tribunal is not satisfied that his comments fell outside the area of proper comment open to him on the evidence.

Ground four argues that if the Adjudicator felt that further evidence was necessary to reach a balanced view and in this context he had referred to the fact that there was no Home Office Country Assessment, he should have adjourned for the Home Office to appear. In the view of the Tribunal there was no proper basis for an adjournment. It was unfortunate that the Secretary of State was not represented at the hearing and the Adjudicator was rightly critical about this failure. However, it is entirely different to say that the Adjudicator should adjourn not least when the gist of the Adjudicator's complaint was that there was no CIPU Assessment for the Occupied Territories. An adjournment would not have achieved any purpose.

Ground five argues that the Adjudicator erred in his consideration of the legality of the occupation of the Gaza Strip. Although the Adjudicator was satisfied that the Gaza Strip was lawfully occupied by the Israeli State, he says in paragraph 57 that his decision would have been the same even if he had come to the contrary view because he did not consider that any of the matters complained of by the Appellant properly amounted to persecution. Mr Lams submitted that the lawfulness of the occupation was a relevant consideration and that the Adjudicator's finding in this respect was incorrect and this error has a material bearing on the outcome of the appeal.

The risk on return to the Gaza Strip

The Tribunal will now turn to the facts relied upon by the Appellant as supporting his claim to be in fear of persecution on return to the Gaza Strip. He relies on an incident when he was aged 15 on a school trip to Khanyounis when he was searched at a border post. The Adjudicator was entitled to conclude that this amounted to a brief detention to establish the Appellant's identity and to search him to ensure that he was not carrying weapons. He refers also to the occasion in March 1988 when his brother Mohamad was shot by a bullet fired from an M.16 assault rifle. This incident took place in the context of a violent demonstration. The Appellant also relies on the restrictions on his movement by the Israeli authorities. The Adjudicator said that these restrictions were perfectly proper security measures. The incident which led the Appellant to leave was the demolition of his home. The Adjudicator found that it was impossible to say with no evidence at all as to the surrounding circumstances that this was persecution. If terrorist operations were being conducted from the neighbourhood for example from an adjoining house it may simply have been a case of a tank round going astray but even if the house had been targeted as the Appellant and his family had left the house previously they would not be able to say who was in the house at the time it was attacked. The Appellant himself had said that he had never been politically active and that the attack on the house was "at random". The Adjudicator was not satisfied that these events amounted to persecution, that there was a risk of persecution on return nor that any incidents would arise for a Convention reason.

Mr Lams referred the Tribunal to Gashi and to Professor Hathaway's classification of rights. That classification is of assistance in considering on the facts of any particular case whether persecution is established. In Ravichandran, Staughton LJ said that persecution must at least be persistent and serious ill-treatment without just cause by the state or from which the state could provide protection but chose not to do so. In Horvath (2000) Imm AR 205 the Court of Appeal emphasised that the threshold for establishing persecution was set high and that anything short of a really serious flouting of a citizen's human rights and dignities would not do. Mr Lams argues that residents of the Gaza Strip are at risk of persecution because the activities of the Israeli authorities are intended to be persecutory. The motivation behind their actions is to intimidate the resident population. Their actions are unlawful particularly in protecting the settlements and in administering collective punishment to act as a deterrent. It is discriminatory because it is aimed at the Palestinian community.

The background evidence to which the Tribunal has been referred confirms that most Palestinian towns and villages have been cut off from each other and from surrounding villages for most of the year in 2002 and there is no evidence to show that the situation has improved. The closures and curfews which affect the freedom of movement of more than three million Palestinians did not affect Israeli settlers. It is also recorded that the IDF blew up scores of houses belonging to the families of Palestinians known or suspected of involvement in attacks against Israelis and that often nearby houses have been destroyed by these explosions. There were also reports that the IDF have forced Palestinians to serve as human shields making them enter or approach houses where there might be armed Palestinians or explosives.

In the US State Department Report 2002 the background to the current arrangements in the occupied territories is set out at page 16 onwards. Israel and the Palestinians have entered into negotiations and by the Oslo Accord have established a framework for negotiating transition and final status arrangements. Following the May 1994 Gaza-Jericho Agreement and the September 1995 Interim Agreement, Israel has transferred most of its responsibilities for civil government in the Gaza Strip and parts of the West Bank to the Palestinian authority but Israel retained responsibility for external security, foreign relations, the overall security of Israelis including public order in the Israeli settlements and over certain other matters. Territories are divided into areas A, B and C denoting different levels of Palestinian and Israeli control but there is no clear evidence to indicate the boundaries of those areas or how they relate to the Appellant's claim.

The international community has considered the Hague Convention applicable to the behaviour of the Israeli authorities in these areas and Israel has maintained that it largely observes the Geneva Convention's humanitarian provisions. This report says that Israel's overall human rights record in the occupied territories remains poor and has worsened in several areas. Israel has carried out policies of demolitions, strict curfews and closures that directly punished innocent civilians. It confirms that homes of families and relatives of suspected terrorists have been demolished. The report also confirms that the Palestinian Authority's overall human rights record remains poor and that it has continued to commit numerous serious abuses. The tragedy of the situation is clear from the incidents described on page 21 of this report. There is a reference to a Palestinian suicide bomber strapped with nail studded explosives blowing himself up in a pizzeria at an Israeli settlement killing three Israeli children. Israeli settlers acting individually and within small groups have attacked and occasionally killed Palestinians. Hamas, PIJ, the PFLP, the DLFP and Fatah affiliated groups such as the Al-Aqsa Martyrs' Brigade and the Brigades of Return continue to kill and injure Israelis. Several Palestinian authority officials have made public statements justifying Palestinian attacks on Israelis and Fatah leaders make public statements urging Palestinians to continue all aspects of the intifada including violent attacks.

Assessing the Appellant's own circumstances in the light of this background evidence, the conclusion to which the Tribunal has come is that the Appellant has been an innocent victim in this conflict. The Tribunal is not satisfied that the past events he has relied on amount to persecution within the Refugee Convention. The risk to him on return to the Gaza Strip is of being an arbitrary victim in the conflict between the Israeli authorities and settlers and the Palestinians. In our judgment the general situation is not such that it can be said that all Palestinians are at risk because they are Palestinian. We also do not accept that young Palestinian males form a category who can properly be described as at risk for a Convention reason.

The Tribunal need not deal with the Adjudicator's findings that the Gaza Strip is lawfully occupied by the State of Israel following its victory in the six day war. The lawfulness or otherwise of the occupation does not in our view affect the outcome of this appeal. The Tribunal must look at the reality of the situation as it applies to this Appellant and then assess whether it can be said that there is a real risk that he faces persecution for a Convention reason or treatment contrary to Article 3. For the reasons the Tribunal have attempted to set out we are not satisfied that he does.

Conclusion

In the bundle of documents before the Tribunal is the determination relating to the appeal by the Appellant's brother, Mohamad Al-Ali. His appeal was heard by an Adjudicator on 3 November 2003. He was not satisfied that the Appellant's brother would face a risk of differential treatment in the Gaza Strip when compared with the dangers of everyday life with which the Palestinian population now have to contend. It was his view that he would not be of any interest to the Israeli authorities. In concluding his determination the Adjudicator commented as follows:

"One cannot read the objective evidence without feeling the utmost sympathy for the Palestinians, who have been uprooted from their homeland and treated with harshness, and indeed sometimes cruelty by troops who themselves feel under threat of death at the hands of suicide bombers, snipers etc. The whole scene is a nightmare and there must be literally thousands of fellow inhabitants of the Gaza Strip who would happily change places with this Appellant and find themselves in a safe haven such as the UK."

The Tribunal endorses these comments. Individuals in the Gaza strip are caught up in circumstances beyond their control. The role of Adjudicators and the Tribunal is to look at the particulars of an individual's circumstances and assess whether he falls within either the Refugee Convention or the Human Rights Convention.

In summary for the reasons the Tribunal has given we are not satisfied that the Adjudicator's comments would lead an informed observer to conclude that there was a real possibility of bias. The tribunal agree with the Adjudicator's conclusions.

It follows that this appeal is dismissed.

H J E LATTER

VICE PRESIDENT