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Cite as: [2005] UKAIT 133, [2005] UKIAT 00133, [2005] UKAIT 00133

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AL (Fast Track – s.103D Funding Precluded) Tunisia [2005] UKAIT 00133

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 26 September 2005

Date Determination notified: 28 September 2005

Before

Mr J Freeman, Senior Immigration Judge

Mrs J A J C Gleeson, Senior Immigration Judge

Between

AL	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Ms R Sethi of Counsel Instructed by Wilson & Co solicitors

For the Respondent: Dr M Smith Home Office Presenting Officer

Interpreter: Mr Ibrahim Al Ziadi, Arabic language

DETERMINATION AND REASONS

Funding order under s.103D of the Nationality, Immigration and Asylum Act 2002 as amended by the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 not available in Fast Track cases (Community Legal Service (Asylum and Immigration Appeals) Regulations 2005 rule 4(2)).

This is the reconsideration of the determination of an Immigration Judge (Miss J Plumptre), who dismissed the appellant's appeal against the refusal of the Secretary of State to recognise him as a refugee and the setting of removal directions to Tunisia, where the appellant claimed to have a well-founded fear of persecution on grounds of his religion and imputed political opinion. This determination is reported for what it says at paragraph 56 about funding orders in fast track appeals.

The Immigration Judge heard the appellant's appeal under the Asylum and Immigration Tribunal (Fast Track) Rules 2005. The appellant has been in detention continuously since service of notice of the immigration decision against which he is appealing. The reconsideration hearing was heard by two Senior Immigration Judges. This Tribunal is required to give its written determination not later than two days after the day on which the hearing of the appeal finishes, that is, in the present appeal, not later than Wednesday 28 September 2005.

Pursuant to rule 22 of the Fast Track rules, fresh evidence may only be considered where a party has notified the Tribunal and the other party of the nature of the evidence and the reasons why it was not submitted on any previous occasion. The only such evidence with which we were presented was an update email from Mr Joffé, and there was no objection to our considering that; it is in the nature of a response to the previous Immigration Judge's determination and we are satisfied that for that reason it could not have been submitted at the Immigration Judge hearing.

Error of law hearing

The appellant is a Muslim man from Tunisia. The core of the appellant's claim is that he was arrested twice, once in 1992 and once in 2000, and on each occasion he was charged with being a member of an unspecified Islamist organisation involved in anti-Government activities and sentenced to imprisonment, one year on the first occasion and eight months on the second. The appellant left Tunisia in 2005, with the help of an agent, as he had been refused a passport by the Tunisian authorities on many occasions. The appellant entered the United Kingdom clandestinely. He fears return as he is now an absconder and will be tortured, detained and imprisoned on return.

This claim turns on the credibility of the core account, which the Immigration Judge found completely incredible. Given the appellant's clandestine entry to the United Kingdom, allegedly on 27 July 2005, and his failure to claim asylum until arrested on 28 July 2005, it was not open to the Immigration Judge to find him entirely credible (s.8 (6) Asylum and Immigration (Treatment of Claimants etc.) Act 2004); the question for us is the extent to which it is proper to regard his credibility as damaged. We have regard to the matters set out in the letter of refusal dated 4 August 2005 which raised the following issues –

(a) if the police followed everyone, then the appellant was not personally targeted (paragraph 14);

(b) the charge of belonging to an Islamist group and working against the Tunisian Government was too vague to be credible (paragraph 15);

(c) the sentences of one year, and eight months, are disproportionate to the sentence in the US State Department Report for 2004 for a Mr Zirda who contacted the banned Islamist party An-Nadha and was sentenced to seven years (paragraph 16);

(d) not attending large gatherings was a minor restriction and if the police were genuinely interested in the appellant, surveillance measures would have been added (paragraph 17);

(e) there were no problems between 1993 and 2000; the appellant had an internal relocation option as the rest of his family, all Muslims living elsewhere in Tunisia, had no difficulties (paragraph 18);

(f) the appellant's account of his relations with the people at his mosque was confusing and vague (paragraph 19);

(g) the appellant could not explain why his second sentence was shorter than the first for the same offence and the Secretary of State did not accept that the marks on his leg substantiated torture claims (paragraph 20);

(h) signing on at the police station was insufficient to engage the Refugee Convention, especially as the appellant had been financially comfortable and never without work (paragraph 21);

(i) the appellant remained in Tunisia for five years after his second release (paragraph 27) and only claimed asylum after being arrested (paragraph 28), which damaged his credibility under section 8 Asylum and Immigration (Treatment of Claimants etc.) Act 2004;

The appellant's Refugee Convention claim, and claims under Articles 2, 3 and 8 ECHR were refused. The appellant appealed, but did not renew his Article 8 claim; his family are all in Tunisia. The appellant continues to rely on the Refugee Convention, and on Articles 2 and 3 of the ECHR. The Immigration Judge accepted the appellant's evidence that he spoke to a police officer to seek asylum but for the reasons set out below, we cannot treat her credibility assessment as fully considered and reasoned.

The appellant's initial application for reconsideration failed; he renewed it to the Administrative Court and was successful, all grounds for review are arguable. We asked Ms Sethi to speak to her grounds for review and her submissions, together with those of Dr Smith, are fully recorded in the record of proceedings. The Tribunal was satisfied that there was a significant factual error in paragraph 19 of the determination where the Immigration Judge considered that –

"I give weight to the fact that at Q22 AIR on page B11 [the appellant] said that the only condition on his release from prison in 1993 was the 'he was not to go into any gatherings or big groups' whereas in his witness statement he said that he was required to report daily to the police stations at both mornings and evenings. I give weight to this inconsistence because if it were true that the appellant had to suffer the restrictions of reporting twice daily from 1993, I find that he would have mentioned this in his asylum interview."

That finding underpins the rest of the Immigration Judge's credibility consideration (paragraphs 20-27). It also reveals a more serious problem in the anxious scrutiny (Musisi [1987] Imm AR 250) which she is expected to give to asylum claims. The twice-daily reporting requirement was mentioned at the asylum interview, contrary to the Immigration Judge's finding, at questions 9, 21, 25, 39, 40, 41, 43, 44 and 47, that is, on pages B6, B11-12, B16-17 and B19 of that interview. It is impossible to avoid the conclusion that the Immigration Judge did not read at least six pages of the 22-page record of the asylum interview, on which her decision on the point was, or should have, been based, and the result was an error sufficiently unfair to the appellant to amount to an error of law (E & R [2003] EWCA Civ 00049). We are satisfied that it had a substantial effect on her credibility finding, and therefore, the error is also material.

Reconsideration hearing

The Tribunal proceeded to hear oral evidence and reconsider the question of credibility on the basis of all the written and oral evidence before us today. We are entitled to have regard to the previous Immigration Judge's determination and in particular, to her account of the documentary evidence before her and the oral evidence which the appellant then gave. The appellant gave oral evidence to our Tribunal through the Arabic interpreter.

Appellant's account

The following account emerges from the screening interview and the asylum interview. The appellant is illiterate but a devout Muslim. He is single. The appellant attended school between the ages of 6 and 10 years old, and then was apprenticed as a carpenter from 1977 onwards. He continued to work as a carpenter until he came to the United Kingdom.

The appellant's parents are dead, but he has a brother and sister still living in Tunisia. The appellant last saw his siblings immediately before coming to the United Kingdom. The appellant's entire family are Muslims, but they did not live in the same village as the appellant did and were non-practising Muslims, so they were not harassed. In his asylum interview, the appellant said his brother lived with his parents and his sister was married and lived in another village.

The appellant has never held a passport, as the Government would not give him one, but did have an entitlement to a national identity card, issued in Tunis in 1975. When it expired in 1985, the appellant did not renew his identity card, because the authorities hassled him. He was able to continue working as a carpenter for a further 20 years without an identity card. He was denied a passport because he was accused of being associated with religious groups.

The appellant said that although Tunisia was a Muslim country, he had been persecuted because of his faith and arrested in 1992 (sentenced to one year) and 2000 (sentenced to 8 months). The appellant was not a member of any religious group and had not taken part in anti-Government activities. He was suspected and questioned because he attended the mosque in Nabil for prayers.

In his asylum interview, the appellant said that he had been tortured in prison and there were marks on his feet. The appellant had been tortured at the police station for 15 days in a cold wet room and beaten with plastic cables. Although the appellant has been in the United Kingdom for two months now, there is neither medical evidence nor photographic evidence of the alleged marks, though it appears from the asylum interview that he showed the Immigration Officer 'marks on his left leg'.

In Tunisia, the appellant was comfortably off as a self-employed carpenter, plenty of work, and was 'not a spender'. The appellant saved his money and could have afforded passage to the United Kingdom at any time after 2005. The agent he paid to bring him to the United Kingdom was introduced by a friend and the appellant paid him the local equivalent of $2300 US Dollars. The agent brought him in by boat, concealed in a lorry, and then bought him a train ticket from a nearby station to London. The appellant did not know which station, or the agent's name.

That core account (with two brief additions as set out above) was maintained and amplified in the asylum interview. The appellant explained that he was permitted to attend mosque throughout but was required to sign on twice a day and asked 'whether I have met any of the Islamist groups'. The accusations, dating back to 1992, were of membership of an Islamist group working against the Tunisian Government, but the appellant never knew the name of the group. The police were so cautious that they used to follow everyone. Some other people had also been tortured. The appellant had heard about the Islamist groups from others but the appellant did not know them.

A lot of those with whom the appellant worked ha d been interrogated or captured and in particular, the police were interested in some mature people the appellant used to sit and talk with. The police had never specified which group interested them or given any name. The group was not a terrorist group, just acting against the Government, but as the appellant had not been involved, the appellant had no idea what acts the group took. The police had no evidence against him. After his release in 2000, the appellant had to 'not go into any gatherings of big groups' and also report twice daily. The same condition had applied after his 1992 arrest. The appellant sometimes attended at another mosque. The appellant knew no one who was involved in anti-Government activities. There were very many other people in his situation. The police were keeping an eye on several mosques, looking for those who stayed on to chat after prayers.

In relation to the 2000 detention, the appellant could not explain why his second sentence on the same charge was shorter than the first. The appellant said that he was only provided with one meal a day, beaten with plastic cables and kicked by the police with metal capped boots. The appellant only had injuries to one leg. After his release, he went back to work and reported as ordered. They had a book at the police station which the appellant had to sign. Life became impossible; if the appellant got a job a bit further out, he could not take it because of his commitment to sign on and he had to inform the authorities of any job he might take outside the town. If for any reason the appellant slept outside the city, the police would come and arrest him, beat him and remind him that he should not go and sleep anywhere else. There was no possibility of signing in another city. The appellant could not get married or settle; it was 'hell and torture' for him.

The appellant intended to come to the United Kingdom long before he actually achieved it; the problem was not finance but finding a suitable agent. A friend who knew of his misery (and whom he had known for seven or eight years without receiving such a recommendation) introduced him to an agent, just a week before the appellant came to the UK. The friend lived in Tunis City. The appellant paid for the agent's services himself; he no longer had his parents to support, only had to provide for himself, and he was always in work. The appellant had no idea which countries he passed through en route. The lorry driver had a Tunisian accent.

The appellant said that he the authorities' interest in him arose from his regular post-prayer discussions with three older men, people he used to work with as a carpenter, who had been previously detained and were being watched by the police. They were now all married and settled; the appellant did not know what they had done against the Government or the name of the group they were involved with. The police were frightened of them because they used to gather at the mosque or at their homes. They never discussed their anti-Government activities with him. The police would ask him who he had sat with and what he had done each day, either when he signed on at the police station, or, if they were feeling suspicious, by coming to his home at 1 am. It happened so often that the appellant lost count.

The appellant gave further details in his witness statement. Most of that statement is amplification or repetition, with the following apparent variations; in 1992, the appellant was accused of 'being in a political movement' and charged with 'conspiracy against the Government'. There is no mention of injuries to his feet but the appellant repeats his allegation that the appellant has marks on his left shin from kicking. In 1996, the appellant met the three men already mentioned (now named as NY, MBH, and LT). The men told him of the treatment they had suffered in detention but not, the appellant said, of their activities. They all had carpentry businesses and the appellant often worked for them thereafter. The appellant believed that he had been targeted because he was single and frequenting a mosque where people the Tunisian authorities suspected also attended.

The appellant now confined his allegation that the authorities followed everyone to 'those whom they believed to be very religious'. He considered signing on twice each day to constitute surveillance. The appellant had been taken for questioning many times between 1993 and 2000 but did not regard this as a problem as he was used to it. Internal relocation was not an option because of the signing requirement.

As regarded the three men, the appellant now said that as they were now all married, the authorities had lost interest in them, but the interest in him continued because the appellant was single and still attending the mosque of which the authorities had suspicions. The appellant worked in the same street as the three men and had last seen them the day before leaving for the United Kingdom. As far as he knew, they were still in Tunisia and continuing to conduct post-prayer discussions at the mosque without official interference.

The appellant repeated that he had approached a police officer to claim asylum and only realised afterwards that he had been arrested. The appellant's evidence to the Immigration Judge seems to have been consistent with the account above.

Oral evidence at the reconsideration hearing

The Tribunal took further oral evidence from the appellant, who confirmed that he had given the names of the three men to the police. The appellant understood that they were just telling people how to be a good Muslim, but that the authorities were afraid of anyone who was religious and tried to recruit others. The appellant did not know if the three men did any more than tell people how to be good Muslims. He knew that they also held meetings outside the mosque which he suspected of being more contentious, and had been invited to those meetings, but declined.

The appellant was able to tell the Tribunal what he thought the authorities feared; he considered that their fear was of increased involvement by devout Muslims in Jihad or Al Da'wa (the Call) which he understood meant calling people back to Islam. The appellant knew the authorities feared him because they thought he did take part in activities outside the mosque, but he did not. The three men were still in Tunisia. They had workshops there, and like him, they had been unable to obtain passports.

The appellant had begun attending the mosque in 1991, when he was 24. He had been drawn to it when he saw how peaceful people looked. The appellant attended the mosque at least daily, sometimes two or three times. The appellant was self-employed and could go when he wanted. The appellant had never learned to read and write and although he wanted to learn, he had found it was too late for him. The appellant liked to attend groups where the teachings were explained, even large post-prayer groups in the mosque.

Tunisia was a secular country; women were prohibited from wearing the hijab and men from growing beards. The appellant had grown a very small amount of facial hair, not really as much as a beard, but after his detention the appellant was scared and began shaving again. In the United Kingdom, the appellant had not considered growing a beard; Islam was in a person's heart, not his beard.

The appellant told us that he had been raised as a Muslim and knew what to do or not in the mosque, the basic things. The appellant said he did not know whether family members attended the mosque; the Tribunal put to him his interview evidence that his brother Tahar attended the mosque and the appellant then said that was different, Tahar lived in a small village and there would only be about four people attending that mosque.

The police had wanted to know exactly who came to see the three men for whom the appellant worked, and what he talked to them about. If the appellant's answers were not satisfactory, the police would beat him. The appellant was not questioned every time he went to sign on; he took no notice of how long he was questioned and could not say what was the longest interrogation he had ever experienced. It was not his understanding that attending a big group at the mosque offended against the 'no large gatherings' restriction which formed part of his conditions of release.

Submissions

Secretary of State's submissions (Dr Smith)

We then heard submissions on the oral, written and background information before us. For the Secretary of State, Dr Smith relied upon the letter of refusal. The appellant's evidence as to whether he knew anyone involved in anti-Government activities was conflicting; at interview the appellant had said, first that he did not, and later, that he did. His evidence to the present Tribunal had been clearer and was that the appellant knew that the three men were involved in anti-Government activities but had avoided engaging with those activities, outside the mosque, while continuing to attend their post-prayer meetings and to work for them in their carpentry workshops.

His evidence as to family mosque attendance was also contradictory and the evidence as a whole, evasive and vague. If in difficulties, the appellant was quick to reiterate that he was a simple man who did not understand politics. The appellant's evidence of the Islamic teachings heard daily for almost fourteen years was very vague and was limited to generalities about being a good citizen. Although the appellant had never previously been able to name a political group, today the appellant had named al-Da'wa without apparent difficulty.

It was absurd to suggest that an appellant could be charged twice, imprisoned, tortured and questioned as frequently as now alleged over a period of fourteen years without the police once mentioning the name of the group with which the appellant was said to be connected. The appellant was unable to say how long he was questioned each time, or even the longest time, and his answers were implausibly vague on that account also.

Further, the appellant continued to attend the post-prayer discussions despite his conditions of release, for years, without the police taking matters further. The friend who helped him to leave had been known to the appellant for eight years and would surely have helped him earlier. Dr Smith asked the Tribunal to find that the original Tribunal made a material error of law, and to substitute decisions dismissing the appeal on both asylum and human rights grounds.

Appellant's submissions (Ms Sethi)

For the appellant, Ms Sethi argued that the appellant's history amounted to past persecution (the two charges of activities conspiring against the Government in 1992 and 2000). As an absconder, his fear of persecution was even more serious. The account was simple and consistent and she asked that the appellant be found credible. The Immigration Judge had accepted the appellant's evidence that he had tried to claim asylum by seeking out a policewoman on the street and been arrested; this should not discredit his core account. His account was consistent with the background material, in particular Mr Joffé's reports.

The appellant's reference in his witness statement to 'our Muslim brothers' was to an international grouping. His reference to al-Da'wa was as a religious not political group. The appellant's rôle with the authorities had been more as an informant, giving movements and associations of people believed to be part of the movement; informants had an important rôle to play. There was nothing to suggest that the appellant regarded himself as prohibited from attending the mosque or its post-prayer discussion groups.

Ms Sethi referred us to pages 26, 29, 32, 39-40 of the appellant's bundle, to pages 4, 5, and 16-17 of Mr Joffé's report of 10 August 2005 (served at 8.42 am on the morning of the Immigration Judge hearing) and to an email from Mr Joffé of 15 August 2005 which was attached to the application for review. The police harassment in the form of signing on was entirely credible; conditions in prisons were poor, with detainees being tortured as the appellant alleged. Being Muslim was not the problem; Tunisia is a Muslim country, but there was a risk to those who were devout Muslims and might therefore be seen as Islamists. It was entirely plausible that individuals frequenting the mosque might be seen as Islamists and be at risk. There was no necessity to hold the political opinion attributed; this was a case of imputed political opinion.

Ms Sethi accepted that the Tribunal's finding on Articles 2 and 3 ECHR would follow the asylum claim and adopted her arguments under the Refugee Convention. Any suspected association with Islamic fundamentalists, specifically those engaged in anti-Government activities, would be heightened by being an absconder as this appellant now was. She asked the Tribunal to set aside the Immigration Judge's negative credibility finding and allow the appellant's appeal.

Ms Sethi also sought s.103D funding. We return to that application below at paragraph 56.

Mr Joffé's evidence

We considered the evidence of Mr Joffé tendered in two reports. The Tribunal has on many occasions found Mr Joffé's reports lacking in objectivity. In GH (Former Kaz – Country Conditions – Effect) Iraq CG [2004] UKIAT 00248, the Tribunal heard oral evidence from Mr Joffé in relation to Iraq and found that –

"75. We have no reason to doubt that both Dr Rashidian and Mr Joffé have considerable knowledge of the countries to which they refer and on a factual basis there is much of assistance to us in their respective reports. For the reasons which we have set out at some length in the preceding paragraphs of this determination, however, we do not consider that either of them ought properly to be relied upon as impartial expert witnesses in this appeal. We have reached this conclusion because we find their reports selective, lacking in objectivity and seeking to promulgate opinions on matters which neither reflect a proper appreciation of the stated and accepted evidence of the appellant, nor the full range of available objective evidence, nor the legal nature of the issues for decision in asylum and human rights appeals. Mr Joffé in particular laid great emphasis on the practicability and logistics of return as well as misunderstanding the nature of the risk to be demonstrated by asylum applicants."

We do not have the advantage of oral evidence from Mr Joffé here. His written report records that he has never met the appellant, but is certain that the appellant is not a member of an anti-Government organisation and had done nothing wrong –

'obviously no sophisticate but an artisan who, by his own account knows nothing and has no real interest in politics, who has simply been swept up into a process of which the appellant knows nothing and over which he has no control'.

The first two pages of Mr Joffé's expert report (numbered 3-5 because of lengthy recitals of articles produced and so on) consist of criticism of the Secretary of State and recital of the appellant's version of events. It is difficult to avoid the conclusion that Mr Joffé is 'parti-pris', that is, that his report lacks objectivity. Pages 5-18 are a general treatise with little focus on the appellant's particular account. The relevant parts of the report at pages 15 and 18-19 consist of extracts from Human Rights Watch and the last two US State Department Reports. It is not clear why, at the bottom of page 19, Mr Joffé cites the US State Department Report when the 2004 report is not in the same terms, implying some improvement. We have been unable to place any weight on Mr Joffé's report and have preferred the original sources.

We have also read Mr Joffé's email sent in support of the review application, which is worth quoting in full as it gives a still better opportunity to assess his objectivity in his approach to the present appeal –

"I am currently in Australia. I have to say that what is clear from the papers in this case is that Mr Lhoat is an extremely simple man who takes no interest in politics at all and who is devout in a way that would mean that he would avoid political discussion. He is a victim of his own simplicity and I am not at all surprised that he knows nothing of political organisations such as an-Nahda. The Party has been banned in Tunisia for more than fifteen years and people would not talk of it because of fear of informers. He could quite easily never have heard its name and only know that political movements of that kind were bad and things about which one did not ask. I can not believe that his credibility should be subsumed into the prejudices of the educated for whom such knowledge is second-nature. Having lived in countries like Tunisia, I am well aware, as apparently the Immigration Judge is not, that the very simple, devout and usually illiterate live in a completely different conceptual world from the educated. Surely allowance must be made for that and ignorance should not be seen as an indictment? George Joffé"

We reminded ourselves that Mr Joffé had never met the appellant. His certainty as to the appellant's simplicity and lack of interest in politics was therefore surprising. Mr Joffé's email also suggested that he had the case papers for this appellant with him in Australia; however, had he either studied them there, or remembered doing so previously, Mr Joffé would have had to take account, as we have done, of the appellant's own account that the police had considered it worth questioning him regularly about membership of Islamic groups over a period in excess of 13 years (paragraph 16 above).

Other background evidence

The core background evidence in the appellant's bundle is the 2005 Amnesty International report on Tunisia, dated 25 may 2005; the US State Department Report dated 28 February 2005; and the Human Rights Watch report dated 13 January 2005. All are current and helpful.

The Amnesty International report records the release of 79 political prisoners, including prisoners of conscience, mostly members or sympathisers of an-Nahda (the Renaissance) an unauthorised Islamist movement. Those released were nearing the end of their sentences. Examples were given of people arrested or sentenced under terrorism related laws introduced in December 2003:

a) Adil Rahali, deported from Ireland, organisation not named in summons, arrested, reportedly tortured, trial scheduled for February 2005;

b) Seven young men convicted of membership of a terrorist organisation, convicted of possessing of manufacturing explosives, theft, using banned websites and holding unauthorised meetings, sentenced to 19 years and three months (reduced on appeal to 13 years). One, a minor, had his sentence reduced to two years. many others arrested at the same time were released the same month;

c) 13 students sentenced to terms of between 4 years and 16 years and 3 months, plus up to 10 years administrative control on terrorism-related charges. All claimed to have been tortured and the decision was under appeal.