United Kingdom Asylum and Immigration Tribunal

RB (Algeria – Berbers) Algeira [2004] UKIAT 00220

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 16 June 2004

Date Determination notified: 10 August 2004

Before
Mr P R Moulden (Vice President) Miss B Mensah (Vice President) Sir Jeffrey James, KBE, CMG
Between

 

RB	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

DETERMINATION AND REASONS
1. The appellant is a citizen of Algeria who has been given permission to appeal the Determination of an Adjudicator, Mr M Ghani, dismissing on both Refugee Convention and Human Rights Grounds his appeal against the respondent's decision to give directions for his removal from the United Kingdom following the refusal of asylum.
2. Mr B Naumann, a Solicitor from Duncan Lewis & Co, Solicitors appeared for the appellant. The appellant attended the hearing. The respondent was represented by Mr A Hutton, a Home Office Presenting Officer.
3. The appellant arrived in the United Kingdom clandestinely on 27 September 2002. He claimed asylum that day. The notice containing the decision against which he appeals is dated 6 May 2003. The Adjudicator heard the appeal on 18 September 2003 and permission to appeal was granted on 20 January 2004.
4. The appellant claimed to fear persecution from the GIA both generally and because his brothers were involved with the Algerian military. He also claimed to fear persecution from the authorities and the non Berber population because of his Berber ethnicity.
5. The Adjudicator found that the appellant was not a credible witness. He concluded that the appellant had not established either a well-founded fear of persecution for a Convention reason or that his human rights were likely to be infringed.
6. We have a 167 page bundle from the appellant's representatives and, from the respondent, the April 2004 Algeria Country Report.
7. Paragraph 1 of the grounds of appeal submits that in paragraph 12 of the determination the Adjudicator misdirected himself as to the law relating to Article 3. In this paragraph the Adjudicator said,

"The standard of proof in human rights appeals falls on the appellant to demonstrate that there has been an interference with his human rights under a relevant article. If he does establish such interference then the respondent must establish that the interference is justified."

We accept that this passage is incomplete and misleading. There can be no interference with Article 3 rights, which are absolute. However, Mr Naumann accepted that this was not the strongest of the grounds of appeal and he did not attempt to argue that it had made a material difference to the Adjudicator's reasoning or conclusions. We find that this is an unfortunate error but that there is no indication that there has been any adverse consequence for the appellant. It is not material".

8. Paragraph 2 of the grounds of appeal submit that, in Paragraph 42 of the determination, the Adjudicator should not have relied on the conclusion that the appellant's evidence was "on occasions vague" without particularising what was vague. The sentence in question reads, "I did not find the appellant impressive and on occasions he was vague in his replies." This passage appears at the beginning of the Adjudicator's findings of credibility and fact after the words "I had the benefit of listening to the appellant give oral evidence." . We find that the Adjudicator was commenting on his overall impression of the appellant's evidence and that he was entitled to do so. These reasons would not suffice on their own but they do not have to. The Adjudicator went on to give further and more detailed reasons for his adverse credibility finding. We will return to the question of whether these support the conclusion.
9. Paragraph 3 of the grounds of appeal does no more than supplement paragraph 2.
10. Paragraph 4 of the grounds of appeal submits that in paragraph 42 of the determination, the Adjudicator failed to consider that there could have been an innocent error in interpretation. This relates to the Adjudicator's conclusion that he found it incredible that the appellant, when his statements were read over to him, did not correct the statement which he subsequently denied, that he was a policeman. In cross-examination the appellant merely said that this was a mistake. He did not attribute the mistake to an error of interpretation. There was no obligation on the Adjudicator to consider another explanation, which the appellant had not suggested.
11. Paragraph 5 of the grounds of appeal submits, in relation to paragraph 43 of the determination, that the Adjudicator failed to consider whether the authorities would provide the appellant with a sufficiency of protection. This is to misunderstand the Adjudicator's purpose. The Adjudicator is taking a point going to credibility, open to him on the evidence, that in the light of the country information it was likely that the police would react if he complained about the activities of the GIA. We will deal with the question of discrimination by the authorities against the appellant because of his Berber ethnicity in relation to the next ground of appeal.
12. Paragraph 6 of the grounds of appeal submit that, in paragraph 47 of the determination, the Adjudicator erred in stating that the objective evidence was clear, that there was no persecution of ethnic Berbers in Algeria, and that in reaching this conclusion the Adjudicator failed to pay proper regard to the country information. Paragraph 7 of the grounds of appeal is the related issue of whether, in connection with the appellant's Berber ethnicity, the Adjudicator considered the Tribunal determination in Toufik Taib [2002] UKIAT 08034.
13. We find that the Adjudicator's reasons for the adverse credibility finding are not flawed. He was entitled to come to this conclusion. We also find that it is a blanket adverse credibility finding which encompasses the appellant's evidence as to why he was persecuted because of his Berber ethnicity. This part of the appellant's claim has not been set out in any detail. Mr Naumann directed our attention to paragraphs 11 and 12 of the appellant's witness statement at 6 of his bundle which states,

"11. As well as these incidents the Gendarmerie, who are Algerian Darak, has beaten me two times because of my ethnicity as a Barbar (Sic). There are conflicts between Darak and Barbar, due to this the Gendarmes have beaten me.

12. I have been persecuted because of my ethnicity as a Barbar. I am not Arabic. The Arab population hates my people. There is severe discrimination on a daily basis. Regarding my ethnicity as a Barbar, Arab people have said that I am a traitor and I was being verbally abused daily in Alonnab. I would receive the same treatment anywhere in Algeria."

14. Page 164 of the appellant's bundle, from the World Socialist Website, states that about a third of the Algerian population are Berbers.
15. Mr Naumann took us to the Tribunal determination in Toufik Taib and in particular the following passages in paragraphs 24 and 25 at page 27 of the appellant's bundle,

"Further, on the evidence accepted the charge was overtly linked to the comment that the appellant wanted a separate state and it is difficult to escape the conclusion that the matter would not have been handled the way it was save that the appellant was a Berber… These events must be placed in the general context of demonstrations connected with the rights of Berbers and the violent methods employed by the state in dealing with them."

16. We find that the conclusions of the Tribunal in Toufik Taib do not relate to Berbers in general. The appellant in that case was a Berber and a school teacher who, with others, went on strike in solidarity with a Berber student who was killed in detention. This individual was a politically active Berber who was arrested, detained and ill-treated because of his Berber politically related activities. He was suspected of being a member of a separatist movement. The case depended on its particular facts and the Presenting Officer conceded that the appellant had made out his case. It does not assist us in this case or in relation to Berbers generally. Mr Naumann accepted that the country information did not show that all Berbers were at risk in Algeria.
17. There is a great deal of information in the April 2004 Algeria Country Report about Berbers. The main passages are between Paragraphs 6.146 and 6.170 in the following terms:-

Ethnic Groups

The Berbers

6.146 The Berbers are the major ethnic minority in Algeria and comprise a little over one quarter of the population – 7 million people. The Berbers are concentrated mainly in the mountainous areas of Kabylia, Chaouia, the Mzab and the Sahara. They are the indigenous inhabitant of the North African littoral. The majority of Algerians are of Berber descent, although as a result of centuries of integration the two main ethnic groups of Arab and Berber have become increasingly indistinguishable.

6.147 Berber Language and Culture The Berbers wish to keep their own culture, and their languages, the principal one being usually referred to as Tamazight. The majority of Berber speaking people are found in the Kabylia area. Other Berber dialects exist in rural areas. The languages are primarily oral, although there are written forms. The National charter of 1996 recognised the Berber culture and language as one of the components of Algerian identity. In April 2002 the constitution was amended to recognise Tamazight as a national language. However, the 1996 legislation on Arabisation requires that Arabic be the official language for public business, including official documents.

6.148 Tamazight is taught at a number of primary schools in the Kabylia area. In July 2003 the Government announced a decision to enhance the teaching of Tamazight in the national education system. There is a university chair for Tamazight. It was also announced in August 2003 that a national centre would be set up to promote the Berber language. There is a 'Haut commissariat à l'Amazighité' under the ministry of Communication and culture which organised, among other things, a Berber film festival in September 2002.

6.149 Newspapers and periodicals appear in the Berber language and the government-owned national television station broadcasts a brief nightly news programme in Tamazight. In the Kabylia area, many television shows and documentaries are shown in Tamazight. There is a Berber television channel based in France.

6.150 Berber Groups The Mouvement Cultural Berbére (Berber Cultural Movement) (MCB) was founded in 1976 and is not so much a political party as a pressure group for Berber issues. It is engaged in efforts to promote the Berber language and identity. Each April the MCB organises demonstrations in Kabylie towns to commemorate the "Berber Spring" when a number of students were killed in demonstrations in Tizi Ouzou in 1980.

6.151 The two main Berber parties, the FFS and the RCD are legal parties. The Kabylia-based RCD and FFS parties have largely Berber membership. There is rivalry between the two parties. RCD members were part of the government until they withdrew in May 2001 in protest at the government's handling of protests in Kabylia (see below). Mouvement pour l'Autonomie Kabylie (MAK) led by Ferhat Mehenni is a minor party that advocates an autonomous Kabylia. A report by the International Crisis group in June 2003 stated that the MAK, although supported outside Algeria, was not popular in Kabylia, and that it had been used by the authorities to divert attention from the demands of the protest movement.

6.152 Treatment of Berbers Berbers hold high office in the government, army, police, business, and journalism. The current prime Minster, Ahmed Ouyahia, is a Kabyle. The MCB was quite unequivocal in stating in 2001 that Berbers were not persecuted in Algeria and that anyone claiming so is doing it merely to advance his own interest. UNHCR have recognised Berber aspirations for recognition of their identity and culture but stated in 1997 that Algeria's population is ethnically mixed and ethnic minorities seem to fear no more and no less than other Algerians. The ICG reported in June 203 that "The Kabyles are not generally discriminated against in public life on the basis of their identity, and their preoccupation with the issue [of identity] has other causes."

6.153 Events of 2001 – 2004 in Kabylia from April 2001 there were a series of protest demonstrations and strikes in this largely Berber area. Up to eighty people were killed in riots immediately following the death of a young man, Massinissa Guermah, in policy custody. The security forces reportedly used excessive force throughout the region against the protestors. Demonstrations and riots quickly spread in reaction in Kabylia and other parts of the country, with further deaths. Protests occurred in forty out of the forty-eight provinces of Algeria in the following months.

6.154 The demonstrations were seen by observers as having stemmed initially from the security forces mishandling of the immediate situation in Kabylia in April 2001. However, they ignited further protests over the traditional Berber agitation for language and cultural recognition, and encompassed wider expressions of anger and despair over poverty, unemployment and lack of housing, hostility towards abuses of power by the gendarmerie, and the perceived failure of the regime to deal with these issues.

6.155 A report by the International Crisis Group (ICG) in June 2003 analysed the situation in Kabylia. The report noted that the protests that started in 2001 were about local government failings and socio-economic grievances and that they have continued so long in Kabylia as opposed to other parts of Algeria because of the specific conditions there. The report stated the principal complaint of the rioters of 2001 in Kabylia and elsewhere in Algeria was the contempt they receive at the hands of authority (hogra) who abuse their power with impunity. The report also noted that since the advent of pluralism in 1989 substantial practical concessions have been made to acknowledge the separate Berber identity of Algeria. However, although the Algerian Government has made concessions it has not handled the issues well.

6.156 El Kseur In June 2001 the Berber leaders produced a list of fifteen demands concerning their grievances, known as the "El Kseur platform". These included official recognition of the Berber language, and judicial trials for paramilitary policemen involved in killing unarmed civilians in April and May, and compensation of the victims for the behaviour of the authorities during the protest marches.

6.157 Issad Report In July 2001 the provisional report by an independent commission chaired by a well known Kabyle lawyer, Professor Mohand Issad, held the gendarmerie mainly responsible for the violence of April 2001 and the following months. It stated the violence was provoked and kept going by the gendarmes, also that their behaviour must have resulted from the Commanders loss of control of his troops, or was the product of interference with the chain of command.

6.158 Speaking shortly before the report was issued, the head of the security forces acknowledged the need for improvements in the police force and said these would be addressed. Also, according to The Middle East and North Africa 2004 50^th Edition, "Earlier the heads of the gendarmerie and civil police, as well as the ministry of the Interior, had admitted the existence of abuse in the Kabylie but denied that it was systematic and widespread."

6.159 Organisation of the protests Much of the local organisation was provided initially through the traditional village committees, (aarch or aarouche), which rejected local official, politicians and police. They were formed into regional groups – the main ones reportedly were the Coordination des Aarouch, Dairas et Communes (CADC) which coordinated local committees in the Tizi Ouzou area; the Coordination Intercommunale de Béjaia (CICB) in and around the city of Béjaia; and the Coordination des Comites Citoyens de la Wilaya de Bouira (CCCWB).

6.160 ICG reported that these three bodies, together with their counterparts from the peripheral wilayats established an umbrella body called the Coordination Interwilayas des 'aarch, dairas et communes (CIADC) and that it was this latter body drew up the movement's platform at El Kseur. The ICG report stated that the Coordinations were political mobilisations whose structures were based on a traditional tribal system. However, it was misleading to call the protest movement the aarch and regard them as traditional.

6.161 Several opposition parties also took part in the various protests and demonstrations, including the FFS, RCD, MDC and PT, and also women's groups. The RCD, the mainly pro-government Berber political party, withdrew from the Government in protest in May 2001 at its handling of the riots. The ICG report in 2003 stated that the FFS and RCD were taken by surprise in 2001 and were unable to represent the popular protests. They have since sought to regain this lost ground.

6.162 In March 2002 the President announced a number of measures, addressing some of the El Kseur demands. These included the adoption of the Berber language as a national (but not official) language, and compensation for victims of the violence. The President did not agree to one of the El Kseur demands – the withdrawal of gendarme units from the area – saying that this was impractical.

6.163 The President also stated that twenty-four gendarme agents and give police officers had been charged with homicide or improper use of their firearms and that their trails would be open. According to HRW, "However, in the months following this strong statement, it was possible to verify only two or three cases where security force agents had been bought to trail. These included the October 29 conviction by a military court of gendarme Merabet Mestari. Merabet was sentenced to two years in prison for involuntary homicide in the killing of student Massinissa Guermah, the incident that triggered months of protests in the Kabylie in 2001".

6.164 Voting in the May 2002 legislative elections and the October 2002 local elections was widely boycotted in Kabylia. Both the RCD and FFS parties refused to participate in the May election. However the FFS took part in the October election.

6.165 Protests were made in response to the arrest and detention in October 2002 of coordination leaders who had organised protests. In December six of the group, including Belaid Abrika, a CADC leaders, and five of his associates began a hunger strike. The ended in mid-January 2003 when it became clear that the authorities would not release them. An indefinite general strike due to take place in January 2003 was abandoned owing to lack of support and it was reported that the people of Kabylia were weary of the conflict.

6.166 2003 In April 2003 thousands of Berbers took part in a mass demonstration to mark the anniversary of the Berber Spring and the protests of April 2001, and to support the prisoners. A one day general strike also took place in April 2003.

6.167 In June 2003, after the release of the leaders who had been imprisoned since the previous year for taking part in protests, the Coordinations reportedly decided to agree to negotiate with the government about the El Kseur demands. The previous position taken by the coordinations that all the El Kseur demands were not negotiable had reportedly led to entrenched positions between the groups and the government, and the aarch movement had developed internal dissension and lost popular support. The ICG reported that the power of the Coordinations had declined since 2001 and its intransigent line had led it to clash with important elements of public opinion in the region the expense of the massive support it had originally mobilised.

6.168 In August 2003 it was reported that the government had the citizens movement had agreed to hold a dialogue and the government announced that it had agreed to one of the El Kseur demands, the inclusion of the Tamazight language in the national educational system.

6.169 2004 In January 2004 the Prime Minister announced after the talks that the government would study five of the six points in the El Eseur list which were said to have been key in sparking the crisis. He also announced that the results of the two elections in 2002 would be set aside in areas that did not participate normally in these polls. Also in January the leader of the RCD party, Said Sadi announced that he would be a candidate in the presidential elections due to April 2004.

6.170 However, the talks were reportedly suspended shortly afterwards due to a disagreement over the status of Tamazight and the question of a referendum on the subject. The Berber leaders reportedly threatened to resume street protests and disrupt the Presidential election. As the election drew near it appeared that the Berber leadership in Kabylia was divided over whether to boycott the poll.

18. It is clear that elements in the Berber Community are not happy with their lot, but there is a dialogue between representatives of the Berber Community and the Authorities. It is also apparent that the security forces act with impunity at demonstrations, including demonstrations by Berbers.
19. In this case, the appellant did not claim to be a Berber activist, involved in Berber issues, or even interested in them.
20. Even if the Adjudicator's blanket adverse credibility finding did not cover the appellant's claims to have been ill-treated because of his Berber ethnicity and he was beaten by the local Gendarmes on two occasions, he has not suggested that they have any continuing interest in him.
21. The country information does not show that if the appellant is returned to his home area or to any other part of Algeria he be is liberty to risk of persecution or infringement of his human rights because of his Berber ethnicity. The country information does not show that Berbers are at risk in Algeria absent any individual and particular reason for having excited the adverse interest of the authorities.
22. We dismiss this appeal.

P R Moulden

Vice President