Cheurfa v Secretary of State for the Home Department [2003] EWCA Civ 585

[2003] EWCA Civ 585
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of Justice
Strand
London WC2
Wednesday, 9th April 2003
B e f o r e :
LORD JUSTICE PILL
and
LORD JUSTICE SCOTT BAKER
BRAHIM CHEURFA
Appellant/
Applicant
-v-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr David Morgan (instructed by Messrs Simmons, Borehamwood) appeared on behalf of the Applicant Appellant.
The Respondent did not appear and was not represented.
J U D G M E N T
(As Approved by the Court)
Between
CheurfaAppellantSecretary of State for the Home DepartmentRespondentDate 2003-04-09

©Crown Copyright

[1]This is an application for permission to appeal against a refusal of the Immigration Appeal Tribunal to permit an appeal to this Court. The applicant seeks to reverse the decision of the Immigration Appeal Tribunal given on 3rd October 2002.[2]The applicant is a citizen of Algeria. He worked for the Post Office in Algeria and he gave evidence before the adjudicator that, while working for the Post Office there, he was approached by the GIA and was threatened by them. He left the country by reason of those threats.[3]In view of the points taken, the facts do not have to be set out in detail. The claim was made on the ground that there was a risk that on return to Algeria there would be persecution of the applicant within the meaning of the Refugee Convention. It was also submitted that to return the applicant to Algeria would place the United Kingdom in breach of the European Convention on Human Rights, reliance being placed on Article 3.[4]At paragraph 50 of their decision the Immigration Appeal Tribunal pointed out that the basis of the applicant's claim is that:
“... he fears the GIA and there is a lack of sufficiency of protection for him from that source.”
[5]Other matters were dealt with, such as internal flight and why asylum had not been claimed in France. The tribunal went on to say:
“54.The appellant comes from Bendjerah, Algiers. It is quite clear there is a sufficiency of protection in Algiers. The objective evidence that the violence from the GIA are mainly confined to the country areas. 55.At the time when the appellant returns he will no longer be employed by the Post Office, as such his use to the GIA has disappeared. 56.In February the prominent Emir of the GIA was killed by the security forces.”
[6]The tribunal considered whether there was persecution on any one of the five Refugee Convention grounds. It came to the conclusion that there was no Convention ground. Then at paragraph 60 the tribunal said:
“It follows therefore, that his claim under the Human Rights Act cannot succeed. In fact, [sic] in this particular case can be distinguished from the facts or the Tribunal in Noune and Mardi.”
I read that as meaning that the facts in this case can be distinguished from the facts in those cases. We have been referred to the decision of the Immigration Appeal Tribunal in Mardi [2002] UK IAT 01327.[7]Having dealt with other matters, the tribunal stated at paragraph 63: “Accordingly, we find even if his account was accepted in its entirety he has not made out that he has a well-founded fear of persecution for a Convention reason and the appeal in relation to asylum must be dismissed. It also follows that applying the guidelines in Kacaj his human rights appeal must fail.[8]This is a renewed application, it having been refused on paper. When refusing leave, Lord Justice Tuckey stated: Although the IAT's decision could have been better expressed: 1.They recognised that the basis of the applicant's claim under both Conventions was fear of the GIA (para 50); 2.But they found as a fact that he was not at real risk from the GIA if returned (54-57) by contrast with the position in Mardi (60); 3.And so it followed, applying Kacaj, that his Article 3 claim failed (63).”[9]The issue for the consideration of this court, as expressed by Mr Morgan of counsel, who appears on behalf of the applicant, is:
“Is it reasonably arguable that the Immigration Appeal Tribunal was not entitled on the evidence before it to find that the applicant did not face a risk of treatment contrary to Article 3 if returned to his home country because his claim was not one that engaged the Refugee Convention?”
[10]In fact, the submissions addressed to this court have been very largely on another issue. Viewed on paper, the issue raised could, in an appropriate case, be an arguable one because there could be a breach of Article 3 in returning a person to another country, even though there was no Refugee Convention ground in relation to the treatment which the applicant had suffered in that country. That point, however, simply does not arise upon the findings in this case. Realistically recognising that (even though it was stated as the only issue for consideration in relation to whether this appeal should be allowed to go forward), Mr Morgan has essentially based his submission on the fact that the Immigration Appeal Tribunal was not entitled to make the findings of fact to which I have referred. In my judgment that submission has no merit either.[11]We are not, of course, a fact-finding tribunal, but Mr Morgan took the opportunity to refer us to a report which appears at p.291 of the bundle. That refers to problems in certain parts of Algeria. It makes no reference at all to any adverse situation in Algiers itself, and it is from that large city that the applicant comes.[12]It is then said in the skeleton argument that in Mardi the tribunal, chaired by the President, accepted that the GIA network is such that they would be able to locate and, if they thought right, take steps against someone such as the applicant who had in the past been targeted by them and who had failed to comply with their requests and had left the country. It is submitted that there would undoubtedly be that risk were he returned to any part of Algeria, including the cities.[13]Mr Morgan persisted in his submission that paragraph 9 of the determination in Mardi supports that proposition. I simply cannot accept that. In paragraph 9 the tribunal sets out the submissions which are made about conditions in Algeria. It is not entirely clear whether this is a reference to the tribunal's view or to the submissions, but I am prepared to accept that it is the tribunal's view that “there is support for this in the objective reports”. That is a reference to certain of the less favourable reports which have come from Algeria. However, there is no finding that Algiers itself is unsafe. The point in that case was that the applicant had left the city and gone to a rural area, and the question arose whether he could be expected to relocate to the city. The tribunal remitted the matter on the basis that the adjudicator:
“... did not deal with any of these matters in deciding whether it would be unduly harsh to expect the appellant to relocate. In our judgment on the materials that have been put before us, bearing in mind that we are dealing with the individual circumstances of an individual appellant, it would be unduly harsh to expect him to relocate to a city in Algeria.”
[14]It would appear to follow that, if it had been reasonable for him to relocate to a city, no question of lack of safety would arise. But whether it is right to draw that inference or not, the decision in Mardi is certainly not authority for the proposition that it is unsafe to return people to the city of Algiers.[15]I have respectfully to agree with Lord Justice Tuckey's comments that the decision of the Immigration Appeal Tribunal could have been better expressed. The word “therefore” in paragraph 60 does not appear to me to be used appropriately, unless what is meant is that the entire earlier findings of fact to which I have referred lead to that conclusion. It is, however, clear from those findings of fact that the tribunal came to the conclusion (and I am quite unpersuaded that it is arguable that they were not entitled to come to that conclusion) that there was a sufficiency of protection from the GIA in Algiers.[16]If that is so, then not only does any claim under the Refugee Convention fail, but so also does a claim under the European Convention on Human Rights. Article 3 provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
What is said in this case is that the risk of such treatment comes from the GIA. On the tribunal's finding that the applicant comes from Algiers and that there is a sufficiency of protection in Algiers, no question of any breach of Article 3 can arise by returning the applicant to that city.[17]Thus, while I would accept that it does not necessarily follow from the absence of Refugee Convention grounds that there can be no case under the European Human Rights Convention, upon the findings of fact in this case there can be no such remedy remaining available.[18]Mr Morgan also relies upon the reason for which the Immigration Appeal Tribunal refused leave to appeal to this Court:
“He is of no interest to the authorities and on that basis dismissed his human rights claim.”
That, too, I have respectfully to say, is not something that necessarily follows. But on a reading of the tribunal's decision (and it is that which has to be considered on the present application), the fault complained of has not arisen. The fact that the applicant is of no interest to the authorities does not, of course, mean that duties may not arise if the threat comes from a body such as, it is alleged, the GIA, against which the authorities provide no sufficient protection. But again it has to be said that, on the findings of the Immigration Appeal Tribunal, no such risk arises.[19]For those reasons it is not, in my judgment, arguable that this Court would reverse the decision of the Immigration Appeal Tribunal and I would refuse this application.

LORD JUSTICE SCOTT BAKER:

[20]I agree.

Order

application dismissed.