SS (Risk, Patriots GIA) Algeria [2002] UKIAT 06168 (21 January 2003) [2002] UKIAT 06168

UKIAT

SS (Risk, Patriots GIA) Algeria [2002] UKIAT 06168 (21 January 2003)

[2002] UKIAT 06168 · 2003-01-21

[1]SS (Risk - Patriots-GIA) Algeria

[2002] UKIAT 06168

IMMIGRATION APPEAL TRIBUNAL Date of hearing: 9 January 2003 Date Determination notified: 21 January 2003 Before Mr J Barnes (Chairman) Mr P D Burns Mr M L James Between SS APPELLANT and Secretary of State for the Home Department RESPONDENT DETERMINATION AND REASONS The appellant was represented before us today by Mr G Saunders, Home Office Presenting Officer. The respondent was represented by Miss S Sher of Counsel, instructed by Merza & Co.

[2]The respondent is a citizen of Algeria who claimed to have arrived in the United Kingdom on 30 July 2001. At all events he claimed asylum on 1 August 2001 and was subsequently interviewed on behalf of the Secretary of State. For the reasons set out in a letter dated 13 September 2001 the Secretary of State refused his asylum application and on 14 September 2001 he issued directions for his removal to Algeria as an illegal entrant. The respondent appealed against that decision on both asylum and human rights grounds. His appeal was heard on 11 July 2002 by an Adjudicator Mr D G Zucker who allowed his appeal. The Secretary of State now appeals with leave to the Tribunal against that decision.

[3]The respondent's factual claim, which was accepted by the Adjudicator, is summarised by him in paragraphs 5 - 14 of the determination. Put shortly, the respondent was a member of an anti-terrorist group founded by the Ministry of Defence in Algeria to provide anti-terrorist support to the Algerian authorities. This group is known as the Patriots. The respondent was second in command in his area and was responsible for the weapons and firearms held by the Patriots, and also for the organisation of ambushes on groups of terrorists which would, of course, have included members of the GIA.

[4]From April 1996 the respondent received a series of six threatening letters from the GIA telling him that if he did not stop working as a Patriot he would be killed. As Patriots had special knowledge of the areas where they worked removing him from his office would have been important for the GIA. He did not wish to give up his work, principally because he felt he would be at greater risk if he was no longer a member of the Patriots and entitled to the protection which that afforded him. He reported the matter to his superior and was told that the gendarmerie would be informed but no action was taken and the threats were not investigated. The threats were renewed again in early 1997 and there had been an approach to his father who was informed that they had instructions to kill the appellant if he did not cease his work. The matter was again reported to the police but the persons concerned could not be identified and the respondent was told to be vigilant and keep the police informed of anything suspicious. From that time on the respondent stayed at nights at the Patriot base for his own safety.

[5]In June 2000 while sitting outside a café in Tessala there were shots from a passing car, two of which injured his friend. The respondent was certain that the bullets were intended for him and this led to his decision finally to leave the Patriots and to leave the country for his own safety.

[6]The Adjudicator, having accepted that evidence, found specifically at paragraph 26 of his determination that the respondent, by virtue of his rank and having been specifically targeted, was in a special position and entitled to rather more protection than an ordinary serving member of the Patriots. He accepted that there was a Refugee Convention reason, namely imputed political opinion, for the targeting of the respondent by the GIA. At paragraph 29 he dealt with the situation as follows:

"I have been particularly driven to the view that the appellant should succeed by the fact that whilst he received some protection as a member of the Patriots such would not be the same once he resigned. The appellant did resign. He told me that before he left the country he handed in his weapon and I accept that. He could hardly then be expected to spend his days living in accommodation along with other Patriots with whom he did not work and without his own weapon, even if they were to have allowed him to have done that, which I do not accept they would. Still further, persons who work towards protecting the safety of others outside compulsory service should be able to give up that work and obtain sufficient protection otherwise their work becomes a life sentence which is inhumane."

[7]The Adjudicator then went on to find that the respondent had established a well-founded fear of persecution under the Refugee Convention and that he would similarly be entitled to protection by reason of breach of

Article 3 of the European Convention

by his return. He dealt with the issue of internal relocation, which had been raised before him, in the following terms at paragraph 33 of his determination:- "Finally I shall make it plain unless it is not clear from the determination itself, that I do come to the view that it would be unduly harsh to have this appellant live anywhere within Algeria given the fact that the GIA do have personnel in various parts of the country and the appellant would live in consistent fear, at least because once he moved into another part of the country a question would be asked about him [sic] and there is a reasonable likelihood, in his case that he would be identified".

[8]The Secretary of State appeals essentially on two grounds. First, that the Adjudicator had based his finding that there was no sufficient protection available to the respondent in Algeria on one newspaper article in The Times on 6 July 2002 but that evidence was not submitted until the hearing at which the Secretary of State was not represented. He claims that he had no opportunity to comment so that the Adjudicator showed unfair prejudice towards the respondent.

[9]We have considered the article in question at this hearing. It does no more than report a terrorist atrocity where a bomb was set off by Islamic fundamentalists in a market near Algiers on 5 July 2002 resulting in the deaths of 35 people and the wounding of others. We agree that it is not directly in point to the issues in this appeal because there is no suggestion that this was a targeted attack such as the respondent claims to fear, but it simply demonstrates that there is still the possibility of activity by the GIA in Algeria, and also near main towns although it is more commonly now confined to the countryside. Before us Mr Saunders did not seek to suggest that, if a particular claimant were being specifically targeted by the GIA, he might not be at real risk in Algeria because the network of agents still exists there.

[10]The second ground of appeal was that the Adjudicator failed to take into account in his findings that the respondent had done precisely what the GIA were seeking; namely, he had ceased to have any further connection with the Patriots and on that basis, says the Secretary of State, he is of no continued interest to the GIA and to find that he is is perverse - that is to say a view which no reasonable Adjudicator could reach on the facts as he found them.

[11]There is no doubt in our mind that there was an error of law in part of the approach of the Adjudicator in relation to his views as to whether the respondent had a well-founded fear of persecution during the period that he was a serving member of the Patriots, that is a matter which is dealt with clearly in the Court of Appeal decision in Fadli (Appeal No. C-2000-268) where the Court of Appeal held that serving soldiers would have no basis of fear of persecution under the Refugee Convention in respect of the hazards which necessarily accompanied their service in that capacity. The judgments however specifically left open the issue of what would be the position of former soldiers on the basis that in Fadli's case it was merely speculative.

[12]We have given careful consideration to the way in which the determination is framed, but are satisfied that although the error of law which we have identified clearly exists, it had no effect upon the final basis of the Adjudicator's decision. What he did was to make certain findings of fact that the respondent might be in a particularly vulnerable position. Those findings are as applicable to his situation after he ceased to be a member of the Patriots as during the time that he was. His decision that there was a well-founded fear of persecution is clearly based on the factual situation that the respondent had resigned from the Patriots and it was approached in that way at paragraph 29 of the determination. We are therefore left with the situation of whether because the Adjudicator did not specifically deal with the point raised in the appeal before us - that the respondent had done what was asked so that there would now be no further interest in him - his decision should be regarded as so flawed as to be unsustainable or perverse. Against this, it must be accepted that it is clear that the Adjudicator was fully cognisant of that point. He specifically set it out in the course of the determination. We do not reach the view that his failure to deal specifically with that point in his findings is fundamental to the general conclusions which he makes against an accepted matrix of facts, including that point, or that his decision is thereby rendered perverse. We are satisfied that it was a decision which was open to him on the evidence, and although another Adjudicator might have reached a different decision that is not a basis on which to say that the Adjudicator's findings in this case are unsustainable, which is the hurdle which must be cleared by the Secretary of State if he is to succeed in his appeal. So far as the first limb of the grounds of appeal is concerned we would only add that it is quite clear from reading the determination of the Adjudicator that he did have regard to the CIPU Report placed before him, the Amnesty International Report for 2002, the current US State Department Report and the Human Rights Watch Report in reaching his conclusions as to the country situation. We are entirely satisfied that the first ground of appeal is not made out.

[13]For the above reasons this appeal is dismissed. J Barnes Vice President