Mouhoub v Secretary of State for the Home Department [2003] EWCA Civ 738

Case No C1/2002/2578

[2003] EWCA Civ 738

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

Venue Royal Courts of Justice

Date Thursday, 8 May 2003

Strand

London, WC2

B E F O R E:

LORD JUSTICE BROOKE

LORD JUSTICE CARNWATH

MR JUSTICE NELSON

Between

KHELIFA MOHAMED AIT MOUHOUBAppellant

-v-

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

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MR MANJIT SINGH GILL QC (instructed by Clore & Co of London) appeared for Claimant/Appellant

MR SEAN WILKEN (instructed by Treasury Solicitor) appeared for Defendant/Respondent

J U D G M E N T

LORD JUSTICE BROOKE:

[1]This is an appeal by Mr Khelifa Mohamed Ait Mouhoub from the decision of the Immigration Appeal Tribunal on 14 October 2002 when it dismissed his appeal against a decision of an adjudicator on 13 March 2002 who had, in turn, dismissed his appeal against a decision of the Secretary of State on 8 December 2000 when the Secretary of State refused his application for asylum. The adjudicator also rejected a claim by the appellant based on the Human Rights Act. The Immigration Appeal Tribunal dismissed his appeal against that part of the adjudicator's decision, too, and, in turn, it is that part of the adjudicator's decision which is the substance of the present appeal.

[2]The appellant is an Algerian citizen. He was born on 10 April 1977. He arrived at Waterloo International Station bearing a false Italian passport on 30 December 1999. He was refused leave to enter. He applied for asylum, and the subsequent course of his asylum application I have already described. In 1998, the year before he left Algeria, he was enlisted in the normal way in the Algerian Army as a conscript after his education at technical college. He was then 21 years old. In August 1999 he deserted his unit after it had taken part in a military exercise in which a number of soldiers had been killed or seriously injured. His unit was given 21 days' leave of absence to recover from being involved in the trauma of that incident. His assertion has always been that if he is returned to Algeria there is a real risk that he might suffer treatment which would contravene

Article 3 of the European Convention on Human Rights

. He also maintained a claim under the Geneva Convention, but that claim was dismissed by the adjudicator and it is not part of the matters before this court.

[3]The tribunal approached the matter along these lines. It stated that it was accepted that, in accordance with the scale of penalties set out in a report by the Home Office Country Information and Policy Unit (CIPU), he would be liable to imprisonment for 2 to 10 years as a deserter. The tribunal stated in paragraph 10 of its determination:

"It seems most likely that he would be required to complete the uncompleted part of his military service and it seems likely that on top of this he might well receive a sentence of imprisonment though, for the reasons which we have indicated above in relation to the current philosophy with regard to conscription, we would take the view that in the circumstances of this appellant the sentence imposed is more likely to be nearer the bottom end of the scale than the top."

At paragraph 15 of its determination it referred to the very many Algerian cases it had heard and stated - " ..... that the influence of the GIA is now confined very largely to rural areas and that in urban areas the government is firmly in control of the political and security situation." In paragraph 21 it stated that the position in Algeria had changed quite substantially in its view since 1999. The whole philosophy towards the question of a conscripted army was under review. The army itself prefers a voluntary force although the government at present has not indicated a policy. The CIPU sources did not indicate that there was a reasonable likelihood he would be subjected to torture or other inhuman treatment if imprisoned.

[4]At the opening of this appeal Mr Manjit Gill, who was instructed very late by the appellant's solicitors, sought permission to amend his grounds of appeal to add a new ground based on the proposition that the tribunal had inadvertently gone wrong because it had decided the case on an agreed basis of fact that the penalty that this young man would suffer for desertion from his military unit would be between 2 and 10 years whereas Mr Gill submitted that the evidence behind the CIPU report, if properly understood, indicated that he faced a sentence of between 10 and 20 years and would also be subject to hard labour.

[5]Mr Wilken, for the Crown, adopted a neutral stance on the application for the adjournment, but he made it clear that the Crown would seek an adjournment of the appeal if Mr Gill was allowed to take this entirely new point. Mr Gill, for his part, remained neutral on the suggestion that there should be an adjournment. We therefore had to determine, first, whether we should grant permission to Mr Gill to amend his grounds of appeal.

[6]What has happened is that when reading the papers shortly before the hearing Mr Gill fastened on the following passage of the CIPU report at paragraph 4.45:

"Penalties for Draft Evasion/Desertion 4.45 The 1971 Military Penal Code sets out the scale of punishments below. Algeria has been in a declared state of emergency since 1992, therefore the wartime scales are liable to apply. No distinction is drawn between conscripts and professional soldiers."

After dealing with draft evasion there is a heading "Desertion" which begins with this text:

"The various penalties for desertion depend on whether the deserter fled within the country, went abroad, or deserted to the enemy, and whether the deserter was alone or in a group. Deserters still have to complete the remainder of their interrupted service period after serving their prison sentence."

There then follows a number of categories of desertion. Under most of them there is one penalty for peacetime and one penalty for war time. For desertion within the country the peacetime penalty is 6 months to 5 years' imprisonment, and the wartime penalty is 2 to 10 years' imprisonment. For desertion abroad, on the other hand, the sentence for a soldier, as opposed to an officer, in peacetime is 2 to 10 years' imprisonment and in wartime it is the heavier sentence of 10 to 20 years' imprisonment with forced labour, to which Mr Gill referred.

[7]Mr Gill sought to argue that the tribunal had decided this case on a mistaken basis and the court should hear his submissions on the appeal based on the proposition that there was a real risk that this young soldier, who had deserted when on military service in Algeria, would face a 10 to 20 years' sentence of imprisonment with forced labour as well. Mr Gill sought to argue that this would amount, along with the other concerns about his treatment, to treatment which contravened Article 3.

[8]When we looked at the way the adjudicator handled this matter we saw that the submissions he received and recorded in paragraphs 7 and 8 of his determination were two-fold. On behalf of the Secretary of State the advocate submitted that as to penalties for draft evasion - paragraph 4.45 was relevant - the appellant would face between 6 months and 5 years' imprisonment in peacetime and between 2 and 10 years' imprisonment in wartime. The appellant's argument was encapsulated in the report by Mr Joffé which he put in evidence:

"Mr Joffé's report deals in detail with the contemporary affairs of North Africa and the Middle East until the end of February 2000 ..... It was accepted that as a deserter, he would face a period of imprisonment within the terms mentioned in the CIPU report. Mr Joffé confirms that the period would be a minimum of 6 months and 10 years if it was considered within a civil war context."

[9]The matter then proceeded to the Court of Appeal on this agreed basis that the likely penalty would be between 6 months and 10 years. The evidential basis for this agreement can be found in the report by Mr Joffé who said, at page 89 of our bundle under the heading "Desertion from the Algerian armed Forces":

"Articles 255 to 270 of the Algerian penal code define the penalties applicable for desertion under the Military Justice Code ..... "

He then picked out 10 different offences under the Military Justice Code. The second offence was desertion within Algeria in wartime - 2 to 10 years in prison. The fifth offence - desertion outside Algeria in wartime - 10 to 20 years' imprisonment (soldiers). It appears to us that Mr Joffé, who has considerable expertise in North African affairs, was reciting from the offences set out in the penal code and he made it completely clear in his expert's report that a distinction was to be made between desertion within Algeria in wartime and desertion outside Algeria in wartime. This is an entirely understandable distinction if a country is concerned to impose harsher penalties when its troops desert abroad than when they desert on home territory.

[10]We asked Mr Gill if inquiries had been made of Mr Joffé, his side's expert witness, when he sought to interpret not Mr Joffé's own expert report but the looser language of the CIPU report in support of his application to amend, and he confessed he had not. It was obvious that if we were going to grant him leave to amend we would then have to obtain expert evidence on this matter of Algerian law against the peradventure of Mr Gill's own expert, if consulted for the first time, being persuaded to change his mind on the subject. It appeared to us that this was a fairly thin basis on which to mount a new challenge at the level of this court against a proposition which, it was accepted in the court below, would stem from the evidence of the appellant's own expert, and when that expert was at pains to define the relevant offences under the Algerian Military Justice Code more precisely than appears in the CIPU report.

[11]For those reasons we considered that there was no merit in the proposed amendment. We therefore proceeded with the appeal on the basis originally advanced by junior counsel formerly instructed, for which Lord Justice Sedley granted leave to appeal.

[12]When

Lord Justice Sedley granted leave to appeal he gave his reasons in these terms:

"This is a true 'anxious scrutiny' case: may [the appellant] be tortured, or worse, if returned as a deserter? The [Immigration Appeal Tribunal] had a choice of testimony, all of which pointed in some degree to such a risk. I do not consider that their reasons for not preferring Mr Joffé's report can be faulted. What I consider appealable is the apparent translation by the [Immigration Appeal Tribunal] of the CIPU evidence of a falling rate of torture of detainees into something less than a reasonable likelihood that [the appellant] will now be tortured. Paras 5.A. 1-2 and 5.B. 10 give little cause for complacency. Although 'reasonable likelihood' has been treated as synonymous with 'real risk', the latter may better express what the [Immigration Appeal Tribunal] should be considering in a case like this. The Bensaid point may well be material here."

[13]Mr Gill helpfully and correctly defined the territory of his appeal in two distinct parts. Under the first part his submissions went to the correctness of the test which the tribunal itself applied when coming to its conclusion on this case, and the second related to the soundness or otherwise of the tribunal's decision on the material evidence before it, and particularly on the evidence in the CIPU report.

[14]I turn first to the point about the test used by the tribunal. After explaining its reasons why it preferred the CIPU report to that of Mr Joffé, the tribunal stated this at paragraphs 19 to 21:

"19 Having come to that conclusion, we then assess whether on the basis of the objective evidence contained in the CIPU Report the risk and degree of seriousness in relation to degrading treatment to this appellant. We would refer to the Tribunal's determination in the case of Devaseelan [2002] UKIAT00702 and the section of that determination dealing with Article 3. In paragraph 65 the Tribunal states: 'In expulsion cases, the harm that is the subject of the claim has not yet been suffered. The issue is therefore not confined to the evaluation of the harm: there is another variable, which is whether the claimant is at risk of suffering that harm. Not all prospective ill-treatment and not all claims of a prospective risk are enough to engage this Article of the Convention. The individual claimant or appellant needs to establish that he is at real risk of suffering a proscribed treatment.' 20 The Tribunal then refers to the case of Bensaid. In the following paragraph 66, the Tribunal states: 'The task, therefore, is to assess the risk of harm by reference at the same time to the seriousness of the prospective harm and the likelihood of it being inflicted on the claimant. It was no doubt the difficulties faced by a claimant in establishing the double contingency that caused the court in Bensaid to refer (at paragraph 40 emphasis added) to the 'high threshold set by Article 3 particularly where the case does not concern the direct responsibility of the contracting state for the infliction of harm'.' 21 As we have indicated earlier, the position in Algeria has changed quite substantially in our view since 1999 when the appellant deserted from the army. The whole philosophy towards the question of a conscripted army is under review, the army itself preferring a voluntary force, and the government at present not having indicated a policy. This in our view would mitigate against the appellant receiving the maximum penalty to which he might be sentenced in accordance with the scale. It would appear that he would be required to complete the uncompleted part of his military service and it may well be that on top of that he would have to serve a prison sentence. The CIPU sources which we have quoted above do not indicate that there is a reasonable likelihood that he would be subjected to torture or other unhuman treatment were he to be imprisoned ..... "

[15]Mr Gill does not challenge the correctness of the task that the tribunal identified at the start of paragraph 19. It had to assess whether, on the basis of the objective evidence contained in the CIPU Report, the risk and degree of seriousness would relate to degrading treatment to this appellant. Nor did he question the correctness of the tribunal's determination in Devaseelan, which it quoted in paragraph 19, where the tribunal said the issue was not confined to the evaluation of the harm; there was another variable which was whether the claimant was at risk of suffering that harm. The individual claimant or appellant needs to establish that he is at real risk of suffering a proscribed treatment. The tribunal was directing itself that the appropriate test was real risk.

[16]The tribunal then referred to Bensaid, which again referred to the risk of harm, although Mr Gill expressed concern that because it was referring to Bensaid, which was a quite different type of case, that it might be misdirecting itself as to the threshold test set by Article 3. However that may be, it is clear that by the time the tribunal expressed its conclusions in paragraph 21 it was applying the test whether there was a reasonable likelihood that he would be subjected to torture or to inhuman treatment were he to be imprisoned. Mr Gill submitted that this raised real concern because the tribunal, in using the language of likelihood, appeared to be using the language of probabilities and the civil standard of proof, and was turning its back on the clear line of case law that when assessing what may happen in the future a lower standard of proof is desirable.

[17]He did not challenge the correctness of paragraph 12 of the judgment of a tribunal chaired by Mr Justice Collins, as President, in Secretary of State for the Home Department v Kacaj [2002] Imm AR 213 which mentioned all the different expressions which are very familiar to those who practise in this field, which have been used at various times by the House of Lords. It refers to R v Governor of Pentonville Prison ex p Fernandez

[1971] 2 All ER 691

and to Sivakumaran v Secretary of State for the Home Department

[1988] 1 All ER 198

. The tribunal in Kacaj was concerned with a case in which the adjudicator had used the expressions "a reasonable chance" or "a serious possibility" when considering the asylum claim. Mr Justice Collins said:

"In our view, now that the European Court has fixed on a particular expression and it is one which is entirely appropriate for both asylum and human rights claims, it should be adopted in preference to any other, albeit others may be intended to convey the same meaning. This will lead to complete consistency of approach and avoid arguments such as were raised by Mr Tam that the adjudicator in using the expression 'reasonable likelihood' in relation to article 3 was applying too low a test. The use of the words 'real risk' also has the advantage of making clear that there must be more than a mere possibility. The adjective 'real' must be given its proper weight. Anxious though the scrutiny must be and serious though the effect of a wrongful return may be, the applicant must establish that the risk of persecution or other violation of his human rights is real. The standard may be a relatively low one, but it is for the applicant to establish his claim to that standard."

It is unfortunate that in the tribunal's determination in the present appeal it did not follow the advice given to it by its President in Kacaj.

[18]It follows that what we have here is a case in which the tribunal has given itself an impeccable direction on the task it had to carry out. It gave itself an impeccable direction from the recent jurisprudence of the tribunal as to the duty to find out whether the individual had established that he was at real risk of suffering a proscribed treatment, and then used the language which was familiar to it in the past that there was a reasonable likelihood that he would be subjected to torture or inhuman treatment.

[19]Mr Gill accepted that if we took the view on the facts of the present case that if it had used the different test it would inevitably have come to the same result given the way it was viewing the matter, then unless the tribunal's approach was fundamentally flawed - that, of course, is the subject matter of the second submission - this court would inevitably dismiss the appeal. He submitted that the error in the first stage of his appeal ran through into the tribunal's treatment of the second stage. He also referred us to passages in the judgment of Lord Justice Auld in R v Immigration Appeal Tribunal ex p Hari Dhima [2002] Imm AR 354. That was a more complex case in relation to the matters that had to be assessed, and I do not consider it necessary to dwell on that decision.

[20]On the other hand, in making all these decisions which relate to an assessment of the future, tribunals have to take into account the guidance given by this court in Karanakaran v Secretary of State for the Home Department

[2000] 3 All ER 449

, perhaps most conveniently set out in the judgment of Lord Justice Sedley at page 479.

[21]I turn therefore to the second part of the appeal. The material which was before the Immigration Appeal Tribunal from the CIPU Report ran along the following lines. Paragraph 4.18 of the report stated:

"Senior Algerian army officers stated on several occasions to the Canadian Embassy in Algiers and also to Home Office staff in London that national service has become less useful to the armed forces ..... Military leaders believe that a professional volunteer army would be of a higher standard. Army circles are reportedly discussing the possibility of abolishing national service, but the intentions of the government in this regard remain unclear."

Paragraph 4.19 of the report refers to a trend towards easing the demands of military service. In paragraph 4.47 it referred to a Paper in 1996 by the Swiss section of Amnesty International which stated that - "in the then prevailing climate ..... the risk of torture is high." In paragraph 4.48 it stated that - "The Algerian authorities [told] the Canadian Embassy in Algiers in March 1999 that people suspected of being absent without leave are arrested by the police and immediately brought before a military tribunal which 'is free to decide the punishment for the individual', according to the law. They stated that absence without leave is not considered to be a major issue by the Algerian authorities: those convicted of this offence are usually sent to their units to do their national service." At paragraph 4.49 the report recorded that two NGOs, one of them linked to the State, said that they had received no complaints about torture of deserters and draft evaders and that the position was considerably different to what it was in the 1970s when soldiers who went absent without leave might have been treated more harshly. At paragraph 4.51 the report stated that the draft evaders would be treated more leniently, and that there were indications that deserters were in a different category and were dealt with much more severely. It was not known how the authorities were presently deciding deserters' cases. That was from a part of the CIPU Report which was directly concerned with the issues relevant to the present appellant's case.

[22]The CIPU Report also contained a more general overview of the human rights situation in Algeria, and it was passages in that overview to which Lord Justice Sedley referred when granting permission to appeal. They included 5.A.1, an observation from the US State Department Report of 2001 that - " ..... despite continued improvements, particularly in addressing problems of torture and arbitrary detention, the human rights situation remained generally poor, and serious problems persisted." In paragraph 5.A.2 it recorded that - "A[mnesty] I[nternational] reported after their first visit in May 2000 that the human rights situation was improving; there had been a significant drop in the level of violence and killings, and reports of arbitrary arrest, prolonged incommunicado detention, torture, disappearances and unfair trials, had diminished significantly." Towards the end of the section on human rights it was said in paragraph 5.B.8:

"Although prohibited by the Constitution and legislation, the police sometimes resort to torture when interrogating persons suspected of involvement with armed insurgency groups. Reported incidents of torture by the security forces are now substantially fewer, although victims may hesitate to complain for fear of reprisal."

At paragraph 5.B.10 it was stated:

"A country report prepared for the Canadian authorities stated that today, according to most interlocutors and judging from what evidence there is available, it is unlikely that any Algerian is at risk of disappearing, much less of being executed summarily, by the authorities, except in cases involving a threat to security or a case of excess on the part of members of the security services."

[23]Mr Gill also showed us other passages in other reports which were to much the same effect as the general passages in the human rights section. I have in mind particularly passages in the Amnesty International Report 2002, on the second and third pages of that report.

[24]Mr Gill argued that if the tribunal had directed itself correctly - that it had to consider whether there was, in its opinion, a real risk that if returned to Algeria this young conscript who deserted from the armed forces would face treatment which contravened Article 3 - the evidence was all one way. No tribunal, if it had properly considered the evidence, could have come to the conclusion to which this tribunal of fact did come. Mr Gill, as his junior before him, trawled over the tribunal's decision to make a number of different points relating to the strength of the material which was before the tribunal from the CIPU Report.

[25]The effect of the submissions he was making were that what army officers may have thought about the likely ending of national service should not have really affected the tribunal's view on how seriously this offence would be treated, whether at the lower or upper end of the 2 to 10 years' imprisonment bracket. He submitted that material which came from the Algerian authorities was likely to be suspect. He submitted that it was wrong for the tribunal to rely on material provided by an unidentified NGO even though the unidentified NGO was not linked to the State. He submitted that the tribunal, although entitled to rely on matters which it had picked up in the course of hearing other cases relating to the same country, was wrong when it challenged the appropriateness of the opinion of Mr Joffé because in many other cases it had heard that the influence of the GIA was now confined very largely to rural areas and in the urban areas the government was firmly in control of the political and security situation. He submitted that although the tribunal is entitled - provided it made clear what its source was - to rely on matters like that, they were under a duty to put them to the appellant's advocate to give him a chance to deal with them.

[26]When one goes to the CIPU Report itself - no doubt quoted to the tribunal on a number of occasions - and looks at what the report stated in 2001, in paragraph 3.30 it states:

"Press reports indicated that a total of 1980 civilians, terrorists and security force members died during 2001 as a result of ongoing violence although main cities were generally secure."

[27]In my judgment, given that this report was part of the material on which this battle was being fought by the tribunal, whatever may or may not have happened at the hearing before the tribunal, it is quite clear that it referred to the material which was before it in that case and which was part of the report that was the focus of attention in that case and was not, which would be very much more worrying, based solely on material which was quite different in some other case. Mr Gill accepts that it is this expert tribunal - and there are three members of the tribunal - that has been charged by Parliament to determine these appeals, subject to a fall back appeal on points of law, which had to consider all this evidence and had to evaluate it.

[28]I, for my part, cannot say that this tribunal was wrong as a matter of law in the way it picked up, on the material before it, a picture that Algeria was no longer so dependent on a conscript army that it was bound to be very very severe on conscripts who deserted. It is a matter for the tribunal to put into the balance. I cannot see that the tribunal on this material was wrong to take into account the evidence of an NGO not linked to the State when it reported that there was no evidence at the moment of torture of deserters who were returned, or other bad treatment.

[29]I see no reason why, with the appropriate caution in relation to any secondhand material, the tribunal should not have taken into account matters which came from the Algerian authorities in what was, in certain respects at any rate, an improving situation. It was quite clear from the material which was before the tribunal that there are serious problems still continuing, problems in the way enemies of the State, people from other political affiliations, people who indulge in terrorist activities, are treated in that unhappy country. Mr Gill had to face the problem, however, that the tribunal was not considering a case of that kind but a case in which a deserter from the armed forces had not established that there was a real risk, if he were sent back, that he would not only face the appropriate penalty for his desertion but there was a real risk that he would face treatment contrary to Article 3.

[30]In my judgment, bearing in mind that this court is a court of law concerned with appeals on points of law, it is quite impossible for us to say that even if there was a significant difference between a real risk test and the test in fact used by the tribunal, as to which I express no view, that the result would have been any different given the approach to the evidence that the tribunal was, in my opinion, entitled to adopt.

[31]For these reasons I would dismiss this appeal.

LORD JUSTICE CARNWATH: I agree entirely. I would only add that, on the point that there was unfairness because the tribunal failed to identify the nature of the evidence from other cases on which they relied, we have no evidence as to what happened at the tribunal or whether there was in fact any reference made by them to other cases. Furthermore, as I understand it, this is not one of the grounds on which Lord Justice Sedley gave permission to appeal. Accordingly it does not seem to be open to Mr Gill to take that point, in any event.

MR JUSTICE NELSON: I agree with both judgments.

Order

Appeal dismissed