SB (Algeria) v Secretary of State for the Home Department [2008] EWCA Civ 913

Case No C5/2008/0808[2008] EWCA Civ 913
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: AA/03798/2007]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 9 th July 2008
Before
LORD JUSTICE DYSON
Between
SB (ALGERIA)AppellantSECRETARY OF STATERespondentFOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr P Draycott (instructed by AS Law) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]The basis of this claim for asylum and humanitarian protection, subject to one point to which I shall come later, was that the appellant would be persecuted by terrorists in Algeria because of her involvement in a government land clearance project and that she would not receive state protection.[2]The first complaint made by Mr Draycott concerns what he characterises as an error of law in that, as he submits, the first immigration judge relied on the fact that there was no evidence corroborating the appellant’s account that there was a nationwide land clearance programme in which she had played a large part. It was that programme and her part in it which formed the basis of her case that those who were disadvantaged by the programme, terrorists, were targeting her. The determination of the Immigration Judge at paragraph 7 did indeed say that there was no objective evidence confirming a programme of clearance of illegal building on public land. He said:
“I would have expected some reference to it, especially if it had an impact upon the rehabilitation of former terrorists. Mr Joffe [who was the expert] makes no reference to it in his report although he claims an expertise in the affairs of Algeria.”
[3]The judge went on to say that he accepted that the appellant was a civil engineer employed by the ministry. He pointed out at [9] that she had been able to live to Algeria unharmed between July and December 2006, which suggested that she could have remained in the country unmolested. He said later in that paragraph that:
“She claims that her enemies are terrorists but there is no evidence to confirm it… There is no organisation targeting her that would have the facilities to know of her return or place of residence should she go back and internally relocate.”
[4]At [10] he said that he did not find the appellant to be a credible witness. “She maintained that to seek police protection was equivalent to criticism of the government and would put her in danger with the authorities. But the danger of people receiving an enforcement notice is something very different, and apolitical, and could be complained of without demonstrating any political view.” A little later the judge said that he concluded that the terrorist character of the threat was contrived. There was no obvious reason why the appellant should not have approached the police about her alleged problems. Her failure to seek police protection undermined the credibility of her account.[5]At paragraph 11 he noted that the alleged land clearance programme would be vast, involving large numbers of people. The appellant recounted events as though it was a one-person activity, which

the judge found to be disingenuous:

“While she may have incurred dislike as an interfering official her involvement was at an early state [which I think must be stage], before demolition commenced, and she was neither the initiating mind behind the scheme, nor the person in the front line actually involved with demolition. She does not suggest that any other person was targeted, but there are many categories of people who should have suffered hostility before it reached her. Her suggestion that she was selected for targeting because she was the weakest one was unpersuasive.”
[6]Then at [12] he said:
“I found the Appellant to be a wholly unreliable witness. I am willing to accept that she was a civil servant but in the absence of any confirmatory evidence I do not accept that there was a nationwide land clearance programme or that she was involved in it. If, however, she was involved in such a programme she has greatly exaggerated her part in it. I reject her claim to have been targeted, either by reason of her activities in the programme or for any other reason[.] I disbelieve her claim to have received threats.”
And at [13] he said:
“If, which I do not accept, the Appellant was threatened by persons who had seen their buildings demolished, I find that Algeria has an operative police force and criminal justice system from which she can seek protection.”
[7]Mr Draycott has referred me to paragraphs in the Qualifications Directive and other material in support of his submission that it was wrong for the Immigration Judge to take into account the fact that no confirmatory evidence of the alleged land clearance scheme had been adduced by the appellant. In my judgment there is no substance in this point at all. The Immigration Judge did not baldly say that there was no confirmatory evidence. He said, and gave cogent reasons for doing so, that he would have expected some reference to such a programme to have been made by the expert and/or in other objective material. That seems to me to be absolutely right. This is not one of those cases where it was unreasonable to expect the appellant to adduce confirmatory evidence of an objectively verifiable state of affairs.[8]His next point is that the Immigration Judge was wrong to hold against the appellant that there was no evidence to confirm that her enemies were terrorists. If that plank of his reasoning had stood alone then I would have seen force in Mr Draycott’s submission, but it does not. It is no more than one of a number of reasons, each of which, as I read the decision, would in the view of the Immigration Judge have been sufficient to justify the conclusion that he reached. The next complaint made is that the Immigration Judge should not have found that there was a sufficiency of police protection for the appellant in Algeria, and he relies on the decision in the case of MM (Article 3-Article 8-IFA) Algeria CG [2002] UKIAT 01327.[9]Again, if this finding of the availability of police protection had been critical to the decision of the Immigration Judge I would have seen force in this point. But it is quite clear that it was not critical to the decision. That is made abundantly clear by paragraph 13 of the determination. The fundamental reason why this appeal was dismissed was that the Immigration Judge did not accept that there was the land clearance programme spoken of by the appellant and he did not accept that if there was such a programme that she played anything more than a minor part in it. These conclusions are unassailable.[10]The final point raised by Mr Draycott is that the Immigration Judge failed completely to deal with the case that he says was advanced, that the appellant was at risk of persecution and/or violation of her human rights because she was, or at any rate would be perceived to have been, a westernised female. It is true that at paragraph 6 the Immigration Judge records, in the middle of his summary of the appellant’s account, that she suffered aggression and abuse both as an official and as a westernised woman, and that she apparently, according to that account, was protected from violence by the presence of the police who accompanied her. I note that last point, which seems somewhat inconsistent with the complaint made by Mr Draycott to which I have already referred about the sufficiency of police protection, but it is correct to say that the Immigration Judge did not focus on a case based upon the appellant’s fear as a westernised woman. It seems to me that the reason for that is that the whole thrust of the appeal was directed to the appellant’s alleged involvement in the land clearance programme and her risk at the hands of terrorists resulting from that.[11]That, it seems to me, is amply confirmed by the fact that in the long and detailed application for a reconsideration, which was granted, -- a document which runs to more than four pages -- there is no reference whatsoever to the westernised woman point. It was not suggested at that stage that the Immigration Judge had erred in law in failing to grapple with a material point that was before him. The westernised woman point did not figure in the application for a reconsideration nor did it figure on the reconsideration itself. In my judgment that casts great light on the way in which this case was in reality advanced before the first Immigration Judge. I do not consider that the failure to grapple with that point was a matter for which the judge could properly be criticised.[12]For all these reasons I dismiss this application.

Order

Application refused