Hariri v Secretary of State for the Home Department [2003] EWCA Civ 807

Case No C3/2002/2035[2003] EWCA Civ 807
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM APPEAL TRIBUNALS
Venue Royal Courts of JusticeDate Friday, 23 May 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE MUMMERY
LORD JUSTICE LAWS
LADY JUSTICE ARDEN
Between
ABDURAHMAN HARIRIAppellant-v-
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR A NICHOL QC & MR M SOORJOO (instructed by Berryman Shacklock, Nottingham NG1 6DW) appeared for RespondentMISS J RICHARDS (instructed by Treasury Solicitor, London SW1H 9JS) appeared for Respondent
J U D G M E N T(As Approved by the Court)
Crown copyright©Judgment

LORD JUSTICE LAWS:

This

[1]is an appeal brought with permission granted by Ward LJ on 13 January 2003 on one ground only, against the determination of the Immigration Appeal Tribunal notified on 7 August 2002. By that determination, the IAT dismissed the appellant's appeal against the decision of the Adjudicator who had, in her turn, dismissed his appeal against the decision of the Secretary of State refusing him leave to enter as a refugee, and also on the basis that there was no real risk that if returned to Syria -- I will deal with the facts in a moment -- he would face treatment in violation of Article 3 of the European Convention on Human Rights.[2]The appellant is a Syrian national. The basis of his claim to asylum and of a real risk of treatment contrary to Article 3 was crisply summarised by the Adjudicator as follows:
"The appellant came to the United Kingdom in November 2000 and requested asylum immediately. He was interviewed the next day and set out the basis of his claim. He said that he personally had never had any particular problem in Syria even though he was a member of the Ba'ath Party, but said he had been unhappy about being required to serve in the army for a third time. He did military service for two and a half years from 1992. He was then called up again for 6 months in 1996, but on 25 September 2000, an army representative came to his home and made a further request that he report to the local military service office. There the appellant complained but this further request to serve in the army, but became involved in a dispute with the officer who was interviewing him, in which the appellant insulted this man and the country. He later learned that intelligence people were looking for him at his home, went into hiding and made arrangements to leave the country because he was viewed as someone who had insulted the President, the government and the country. He said he had not been called up. He thought if he returned to Syria he would be imprisoned for at least 10 years without trial."
[3]The appellant went on to claim that if returned to Syria he would be tortured as well as imprisoned. In paragraph 12 of her determination, the Adjudicator said this:
"With regard to the appellant's credibility, he had consistently said that he was required to do a third period of army service and objected to this. In particular because it would interrupt his work in his business. I accept this evidence about the requirement to do further military service. His objection to it, his dispute with an army officer, and the fact that inquiries were subsequently made about his whereabouts by military personnel."
However, the Adjudicator did not accept certain further claims made by the appellant, not least that his conduct meant that he had fallen foul of the Ba'th Party in Syria. The IAT, for its part, was later to say:
"6. We consider the Adjudicator's findings were adequately reasoned and perfectly sustainable. On the appellant's own account at interview he had no history of political or religious opposition to the Ba'th Party regime. When he raised his objections to doing a third period of military service with the authorities in Syria, he did so in terms of its disruption to his dentistry practice and with his family. "7. Given that it was not until the stage of commenting on the refusal letter that the appellant had made mention of any conscientious objection grounds, the Adjudicator was, in our view, fully justified in rejecting as an embellishment his claim to have been considered by his superior military officer as disloyal to the government . . . "
It seems to us that, if the Syrian regime was actually requiring persons who had already served military service twice to do further military service, they would be well used to having to deal with disgruntled reservists. In the absence of credible evidence of a serious dispute, it would be naive to think a superior military officer would attribute to someone who had loyally served two previous stints of military service disloyalty to the government. "8. As regards to the appellant's claim that the authorities would view him as someone who may have revealed military secrets, again we consider that the Adjudicator was fully entitled to reject this on the grounds that the appellant made no mention of this until the oral hearing."[4]These conclusions meant that there was nothing personal to the appellant which put him at real risk of serious ill-treatment if he were returned to Syria. The grounds of appeal to this court, as originally advanced, sought to challenge the IAT's factual conclusions as to how the appellant in his particular circumstances would be viewed by the Syrian authorities, and also the IAT's rejection (I need not read the passage in the determination) of a claim based on Article 8 of the European Convention. Ward LJ refused permission to appeal on these grounds. Mr Nichol QC, for the appellant, does not seek to renew them. In order to understand the single ground on which permission was granted, it is necessary to return to the IAT's determination:
"10. Mr Soorjoo further asked the Tribunal if we were not minded to accept that the appellant had shown any real risk of serious harm personal to him, to conclude he would nevertheless face persecution or treatment contrary to Article 3 as a failed asylum seeker who would be liable to prosecution as a draft evader and as someone who had made an unauthorised departure. However, even were we prepared to accept that he would face punishment for both these reasons, we do not consider that the objective country materials establish that as such a person, he would face a real risk of either persecution or ill-treatment. It is true these materials do demonstrate that specific categories of persons, including political opponents, face such a real risk, but not that ordinary returnee draft evaders face such a real risk. Indeed, the very passages from the background materials cited in the grounds of appeal emphasise again and again that it is persons who are opponents or suspected opponents of the regime who are routinely tortured or who experience oppressive imprisonment. The US State Department Report dealing with Syria for the year 2000 records that while prison conditions are generally poor and substandard, the worst conditions are to be found in the prisons where political or national security prisoners are kept. In the absence of evidence to show that for those detained in the ordinary course of events as punishment for draft evasion and unauthorised departure, there is a consistent pattern of gross and systematic violation of fundamental human rights, we are not prepared to conclude that there would be a real risk of persecution or treatment contrary to the appellant's rights under the ECHR (in this regard we follow the approach taken recently by the Tribunal in Muzafar Iqbal [2002] UKIAT 02239). "11. On the evidence in this case we consider the Adjudicator was correct to find that there was insufficient evidence to show that such persons would be dealt with in an excessive or disproportionate way."
[5]At this stage, the appellant's argument before the IAT was that he was at risk of ill-treatment if returned as a member of a class, rather than on account of facts special to him. His essential complaint, and the point on which Ward LJ granted permission to appeal, is that the IAT in paragraph 10 applied a standard of proof for the establishment of a risk of persecution or treatment contrary to Article 3 which is highly than, and at variance from, the standard established in the jurisprudence. In short, it imposes greater burdens on an applicant than should be imposed having regard to the test set out in Sivakumaran [1988] 1 AC 958, in their Lordship's House, namely: "a reasonable degree of likelihood" of relevant ill-treatment. This requires proof of a real, that is, not a fanciful, risk; but its perceived incidence may well be less, perhaps a good deal less, than a formal probability of 51 per cent or more. It is common ground that the Sivakumaran standard applies as surely in appeals brought under the European Convention on Human Rights as it does in refugee appeals as such. The appellant's target in this argument is the requirement, adopted at paragraph 10 of the IAT determination which I have read, to show "a consistent pattern of gross and systematic violation of fundamental human rights" by way of punishment for draft evasion or unauthorised departure from the country, before a case of persecution or Article 3 ill-treatment could be accepted.[6]Before directly confronting the issue, it is, I think, useful to look at the case of Muzafar Iqbal [2002] UKIAT 02239 referred to, as I have shown, in paragraph 10 of the Tribunal determination and referred to also by Mr Nichol in the course of his submissions this morning. At paragraph 58 and 59, the Tribunal said this:
"58. The 'gross and systematic' standard is not chosen arbitrarily. It has been in use as a minimum international standard by the UN ever since the introduction in 1967 of Resolution 1235 authorising the Commission on Human Rights to 'examine information relevant to gross violations of human rights' and to 'make a thorough study of situations which reveal a consistent pattern of violations of human rights'. Article 3 of the 1984 UN Convention Against Torture which prohibits return of a person to another State which there are substantial grounds for believing that he would be in danger of being subjected to torture enjoins at paragraph 2: "
'For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights'. "59. Whilst not even under Article 3 of the Torture Convention has this standard been used on its own to establish risk of torture in the context of refoulement, the case law of the Committee Against Torture on Article 3 does confirm that, in the absence of personal risk, it is difficult for a person to show a breach of Article 3 unless the level of abuse of human rights in the country of return is at least as serious as that of 'a consistent pattern of gross, flagrant or mass violations of human rights'; indeed even the existence of such a pattern may not be enough: see Kisoki v Sweden, Comm No.41/1996 [reference to its report is given]. Where, however, one has a situation in which it is accepted that a claimant would face prosecution and pre-trial detention, it would seem sufficient for him to establish a consistent pattern of gross, flagrant or mass occurrences of ill-treatment in detention."[7]Mr Nichol submits that this approach is flatly inconsistent with Sivakumaran, and that it is wrong in principle to treat the approach to Article 3 of the Torture Convention as a legitimate read-across to the 1951 Refugee Convention and Article 3 of the European Convention on Human Rights. In his skeleton argument he has enumerated a number of differences between the two sets of provisions.[8]In my judgment, however, the appellant's arguments all forget one simple but central fact in the case. It is that the points concerning the appellant's individual circumstances had all fallen away. When it came to paragraph 10 of the IAT determination, his case depended entirely upon it being established that there was a real risk that he would suffer unlawful ill-treatment, as I have said, as a member of a class or perhaps two classes: draft evaders and those who had left the country without authority. In those circumstances, as it seems to me, the "real risk" -- the conventional Sivakumaran standard -- could not be established without its being shown that the general situation was one in which ill-treatment of the kind in question generally happened: hence the expression "gross and systematic." The point is one of logic. Absent evidence to show that the appellant was at risk because of his specific circumstances, there could be no real risk of relevant ill-treatment unless the situation to which the appellant would be returning was one in which such violence was generally or consistently happening. There is nothing else in the case that could generate a real risk. In this situation, then, a "consistent pattern of gross and systematic violation of fundamental human rights", far from being at variance with the real risk test is, in my judgment, a function or application of it. As the Tribunal said in Iqbal, paragraph 57:
"In cases which rest not on a personal risk of harm (for example, where the police or prison staff would have cause to target a claimant) but on a risk of serious harm said to face people generally, for example in this case all persons detained pending trial, it cannot be said that they would face a real risk of serious harm unless in that country there is a consistent pattern of gross and systematic violations of their human rights whilst in detention."
This seems to me to reflect no more nor no less than the reality of the situation. The fact that ill-treatment or misconduct might be routine or frequent would not be enough. I should add that, in my view, the fact that the gross and systematic test historically has its genesis in Article 3(2) of the United Nations Convention Against Torture is, in truth, neither here nor there. I pass no judgment upon Mr Nichol's points of difference between the Torture Convention, the European Convention and the Refugee Convention. The reason why it matters not what is the genesis of the consistent pattern test is that that test has been applied simply by the choice of this Tribunal in paragraph 10 of its determination as an appropriate way of giving reality to the real risk standard. It seems to me they were entitled to do that whatever the historical genesis of the "gross and systematic" approach may have been.[9]In all these circumstances, I can find no legal misdirection in the IAT's determination and, for my part, I would dismiss the appeal.

LADY JUSTICE ARDEN: I agree.

LORD JUSTICE MUMMERY: I agree. Appeal dismissed. There will be a section 11 order and a detailed assessment. Leave to appeal to the House of Lords refused.

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