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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Zeghdaou v. The Secretary Of State For The Home Department [2005] ScotCS CSOH_93 (12 July 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_93.html Cite as: [2005] ScotCS CSOH_93, [2005] CSOH 93 |
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Saber Zeghdaou v. The Secretary Of State For The Home Department [2005] ScotCS CSOH_93 (12 July 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 93 |
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P1151/04
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OPINION OF R F MACDONALD QC (Sitting as a Temporary Judge) in the cause SABER ZEGHDAOU (AP) Petitioner against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent
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Petitioner: Govier; Drummond Miller WS
Respondent: Miss Drummond; H F Macdiarmid, Office of the Solicitor to the Advocate General
12 July 2005
Introduction
[1] The petitioner is a national of Algeria. He was born on 17 January 1971. He worked as a customs officer in Algeria. He stowed away on board a ship bound for France in December 1999. He stayed in France for two or three months. He did not apply for asylum there as he was afraid that he would be returned to Algeria. He then went to Italy, where he had friends. He was told that there were only two countries where he could feel safe, namely, the United Kingdom or Germany. He came to the United Kingdom on 21 May 2000 (it is not disclosed how he entered the country) and claimed asylum in Edinburgh on 25 May 2000. He claims that he fears persecution, torture and death from the Algerian state if returned to Algeria because of his active support of Islamists there. He asserts that the risk to his life and well-being is increased by the fact that he worked for the Algerian government. [2] On 6 February 2001 the respondent, who is the Minister responsible for immigration control within the United Kingdom, refused the petitioner's application for asylum on the ground that the petitioner had failed without reasonable explanation to make a prompt and full disclosure of the facts of his claim and so failed to establish his claim. There were two reasons why the respondent reached this conclusion: first, the petitioner failed to complete and return within 14 days a Statement of Evidence Form in support of his application for asylum sent to him on 14 January 2001; and, secondly, he failed without reasonable excuse to attend for an asylum screening interview on 29 January 2001. On 21 March 2001 the petitioner appealed to an adjudicator against the respondent's refusal to grant him asylum. The reason which he gave in his Notice of Appeal for seeking asylum was: "I submit my removal from the UK to Algeria would be in breach of Article 3 of the European Convention on Human Rights as I would face inhumane (sic) and degrading treatment and possibly death". The appeal was heard by an adjudicator, Mr Paul F Doyle, sitting in Glasgow on 1 October 2002 and was refused by a determination promulgated on 21 October 2002. At that hearing the petitioner was represented by Miss Robb of the Immigration Advisory Service ("IAS") and the respondent was represented by a Home Office Presenting Officer, Mr Scarcliffe. The petitioner then applied to the Immigration Appeal Tribunal ("IAT") for leave to appeal against the determination of the adjudicator and submitted seven separate grounds of appeal in support of his application. By a determination dated 18 November 2002 and promulgated on 2 December 2002 the IAT refused the petitioner's application for leave to appeal. [3] The present petition for judicial review seeking reduction of the determination of the IAT was lodged on 24 June 2004 and a First Order was granted on 28 July 2004. A First Hearing was fixed for 10 December 2004. Answers were lodged by the respondent on 6 December 2004. The First Hearing fixed for 10 December 2004 was taken off the roll without calling in order that the petitioner could answer two calls made by the respondent in answer 7. When the newly fixed First Hearing called before me on 1 June 2005 Mr Govier for the petitioner moved that it be adjourned for four weeks in order that Miss Robb could be precognosced. Mr Govier advised me that on 10 December he had written a Note requesting that Miss Robb be precognosced on the averments in answer 7. On 11 May 2005 his instructing solicitors reported to him that she could not remember exactly what had happened at the hearing before the adjudicator. He then advised that further attempts be made to precognosce and take an affidavit from her once she had seen the IAS file and the productions and her letters of instruction to him. Mr Govier explained that her evidence was required because there was a dispute about what written statements were before the adjudicator. Other lines of inquiry which could be pursued included checking whether any notes taken by Miss Robb were within the IAS file and obtaining any record of proceedings made by the adjudicator. Miss Drummond for the respondent opposed the motion for adjournment. She stated that there was no dispute, in light of the terms of the adjudicator's determination, that the petitioner's written statement was before the adjudicator and it was not clear why the record of proceedings had not been recovered earlier. [4] I refused Mr Govier's motion for an adjournment. I had regard to the procedural history of the case set out above. The petition had not been brought until about 20 months after the decision of the IAT to refuse leave to appeal. This was the second occasion on which a First Hearing had been set down. Solicitors and counsel had had ample time since 10 December 2004 to make whatever further preparations or inquiries were deemed necessary. I was provided with no reason why the necessary work had not been undertaken and completed in time. I therefore refused the motion for an adjournment.The Political Situation in Algeria
[5] It is necessary, in order to understand the points which arise for determination in this petition, to know something of the recent political history of Algeria. Most of the relevant information is contained in the Country Information and Policy Unit (CIPU) report, a Home Office document which was before the adjudicator at the hearing. [6] Algeria, a country on the western Mediterranean coast of Africa, was under French colonial rule from the mid-nineteenth century until it gained independence in 1962. During the colonial period many French citizens settled there permanently and became known as pieds noirs because, unlike the native population, they wore shoes. In 1954 the main Algerian nationalist movement, the Front de Libération Nationale ("FLN") began a war of national independence, during which about one million people were killed or wounded, and which culminated in a cease-fire and declaration of independence in 1962. A new government, with Ahmed Ben Bella, the founder of the FLN, as Prime Minister, was formed. As a result of the nationalist victory about one million French settlers emigrated from Algeria. [7] Following the economic problems resulting from the collapse of oil prices in the mid 1980s a wave of strikes and riots culminated in considerable bloodshed and street demonstrations in 1988. A state of emergency was declared and President Chadli decided to embark on a programme of constitutional reform. In February 1989 a multi-party constitution was imposed. The Front Islamique de Salut ("FIS"), or Islamic Salvation Front, established in 1989, emerged as the largest and most influential opposition movement, capable of developing a nationwide organisation based on mosques and other Islamic organisations. Its promises of social justice and welfare services appealed to the urban poor and unemployed and in local elections in June 1990 it gained control of 32 out of 48 provinces and 853 out of 1,539 municipalities, winning landslide victories in all major cities. General elections to the National People's Assembly ("NPA") were announced for 27 June 1991 and at the same time major changes, designed to tilt the electoral process against the FIS and in favour of the FLN, were proposed, including restrictions on campaigning in mosques and an increase in the number of constituencies. Following protests by the FIS about the proposed electoral law and calls by them for a general strike the government declared a state of siege and suspended the elections indefinitely. Widespread unrest followed, during which the two leaders of the FIS, Abbasi Madani and Ali Belhadj, were arrested along with thousands of their supporters. In October 1991 the dates for general and presidential elections were set as 26 December for the first round and 16 January 1992 for the second round in those constituencies where there had been no outright winner in the first round. The FIS won enough seats in the first round to need victory in only 28 of the 199 seats where a second round of voting was needed. On 4 January 1992 the NPA was dissolved and President Chadli resigned, apparently under intense pressure from military leaders. Security forces took over key installations in Algiers and the Higher Security Council cancelled the second round of the elections. Violent clashes between the police and FIS supporters occurred across the country over the weekend of 8 and 9 February 1992. Detention centres were opened in the Sahara and the FIS claimed that 150 people were killed and as many as 30,000 detained after the military take-over. The government declared a state of emergency, banned the FIS and dissolved the 411 local and regional authorities controlled by the FIS. [8] Following upon the outlawing of the FIS in 1992, the Islamic opposition became fragmented and increasingly radical. A political vacuum was created which was increasingly filled by armed Islamic groups operating autonomously across the country, united only in their opposition to the régime. Insurgents killed security personnel, politicians, civil servants, intellectuals and foreigners. The Armed Islamic Group ("GIA") emerged in 1993 and claimed to be involved in a Jihad or holy war, its stated aim being to overthrow the government and set up a fundamentalist Islamic state. The GIA has been responsible for some of the worst atrocities since the outbreak of violence in 1992, including the killing and abduction and rape of women. They have targeted families of members of the security forces, schoolgirls, intellectuals, artists, journalists and women not wearing the veil (heijab) and been responsible for numerous bombings. The Salafist Group for Call and Combat ("GSPC") was a former faction of the GIA but split from it in mid 1998 and is linked to the radical wing of the FIS. Its leader is Hassan Hattab and it concentrates its operations mainly on the security forces, including conscripts, and is often behind the ambushing and killing of soldiers and municipal guards in roads and mountainous areas. It carries out fewer operations than the GIA but they are more deadly. It finances its operations by racketeering, cross border smuggling in western Algeria, real estate investments (money laundering activities) and Algerian support networks, particularly outside Algeria. The Islamic Salvation Army ("AIS") was created in mid 1994 as the armed wing of the FIS. In 1995 it was estimated that it had approximately 6,000 members. Its leaders merged with the Armed Islamic Movement ("MIA") and declared an end to their guerrilla struggle against the government on 6 June 1999. [9] To return to the chronology of political events, on 29 June 1992 President Boudiaf was assassinated and President Ali was appointed to succeed him. In July 1992 the FIS co-leaders Abassi Madani and Ali Belhadj were sentenced to 12 years imprisonment. In February 1993 the state of emergency was renewed for an indefinite period. On 31 January 1994 Liamine Zeroual, Defence Minister and General, nominated by the High Council of State, was appointed as the new president. Throughout 1994 violence in Algeria escalated, with daily attacks by the Islamic extremists on government officials and others. Most embassies were closed and foreign nationals were advised to leave or not to travel to Algeria because of attacks on foreign nationals. The Algerian security forces intensified their campaign against armed Islamic groups and reports suggested that air attacks, punitive raids and torture had been used to eradicate the terrorists. [10] Throughout the period from 1995 to 1998 there were numerous reports of violence, such as bomb explosions in the main cities, massacres of civilians and fighting between government security forces and Moslem guerrillas. On 16 November 1995 President Zeroual won the presidential election. The cycle of violence had intensified by mid 1997 when a series of massacres took place in villages to the south and west of Algiers known as "the triangle of death". The GIA was widely blamed for the massacres. In June 1997 the general election was won by the National Democratic Rally ("RND"), the main supporter of President Zeroual. In the local elections in October 1997 the RND won more than half the seats contested. The main lawful opposition groups, including the FLN and the Movement of a Peaceful Society ("MSP") organised demonstrations to protest about what they considered to be fraud in the local elections. In the same month the AIS, the armed wing of the FIS, declared a ceasefire in an attempt to expose members of the GIA as the principal perpetrators of the recent civilian massacres. On 25 December 1997 the RND won most seats in the Council of the Nation, the second chamber of Parliament. In July and August 1998 an Eminent Panel appointed by the Secretary General of the united Nations visited Algeria and subsequently reported that Algeria deserved the support of the international community in its effort to combat terrorism but that the Algerian authorities should improve the transparency of their decisions. [11] A presidential election was held on 15 April 1999 and the following day Abdelaziz Bouteflika was proclaimed president, having won 73.8% of the vote. The reason why he obtained such a high percentage of the vote was because the six other candidates withdrew from the election several days before it took place, claiming that the military, which had backed Bouteflika's candidacy, had intervened to rig the ballot in his favour. There was international comment that the true voter turnout figure was lower than claimed and the opposition held demonstrations in major cities across Algeria to protest against the election. As stated above, the AIS (the armed wing of the banned FIS), which had been observing a unilateral ceasefire since October 1997 in order to distance itself from the GIA, declared an end to their guerrilla struggle against the government on 6 June 1999. In July 1999 President Bouteflika pardoned 5000 imprisoned Islamist sympathisers and drew up a Law on Civil Concord, which was unanimously adopted by the NPA. The Law offered an amnesty for Islamic militants not implicated in mass killings, rapes or bomb attacks on public places and reduced sentences for such crimes provided the perpetrators surrendered by 13 January 2000. The president's initiative was supported at a referendum held on 16 September 1999, although the claimed turnout of 98.6% of voters was questioned by the opposition. In November 1999 Abdelkader Hachani, the leader of the FIS, was killed in Algiers. A suspect was arrested in December 1999 and sentenced to death in April 2001. Also in December 1999 President Bouteflika appointed a new coalition government of seven parties including the RND, FLN and MSP. [12] More than 180 people were killed during the holy month of Ramadan ending on 8 January 2000. Just before the expiry of the amnesty deadline for armed groups on 13 January 2000 the AIS leader Madani Mezrag announced that the AIS would dissolve itself. In return the president announced an immediate full amnesty for AIS members. An estimated 4000 to 6000 members of the GIA also surrendered under the Civil Concord Amnesty. In August 2000 Ali Benflis, described as a reformer and close collaborator of President Bouteflika, was appointed Prime Minister. From mid 2000 the number of terrorist attacks on the population increased. 300 people, including over 100 members of the security forces, were killed during the Ramadan month ending on 27 December 2000. In several instances groups of 20 to 30 civilians were killed. [13] Press reports indicated that a total of 1980 civilians, terrorists and members of the security forces died during 2001 as a result of ongoing violence, although the main cities were generally secure. In August, and again in November, bombs exploded in Algiers for the first time since 1998, killing one person and injuring more than 60. The death toll during the Ramadan period ending in mid December was lower than previous years at less than 100. From late April riots occurred in the Kabylie region following the death of a young man in police custody. [14] In January and March 2002 bombs exploded in central Algiers injuring three and 15 people respectively. In February 2002 Antar Zouabri, regarded as the most prominent emir of the GIA, was killed by the security forces. Also in February 2002 the government confirmed that elections due in June 2002 would take place on 30 May 2002.The Petitioner's Evidence
[15] The first evidence presented by the petitioner consisted of a typed statement (no 7/4 of process) dated 13 September 2002 signed by him and consisting of six pages and sixteen paragraphs. This statement was before the adjudicator at the hearing. In it the petitioner narrates that his problems in Algeria arose from his association with Islamists. His brother, Samir, a member of the FIS since its inception in 1993, was arrested in the streets in Batna, detained and sent to a detention camp in the Sahara where the conditions were extremely harsh and he was tortured, but from which he was released after a year. He returned to the family home (consisting of a grandmother, two parents and seven children). In 1992 the petitioner had himself become politically opposed to the government and his subsequent experiences of how the government treated those allied with Islamist movements and ideology strengthened his hostility to the government. Over the years he saw his friends killed and beheaded for their beliefs and how badly his brother was tortured in detention. In 1994 he completed his training as a customs officer and, after a placement for four or five months in Algiers, he was given his first full job in Souk Ahraas. His brother, after his release in 1994, returned to his activities supporting the Islamists, which included posting leaflets in public places and collecting donations of food and clothes for Islamists who lived in the mountains. The Islamists came from the mountains to the family home in Batna to collect these goods. At the end of 1994 military officers and gendarmes came to the family home and punched the petitioner hard on the solar plexus with the butt of a weapon when he opened the door to them. They were searching for the petitioner's brother, who was taken to prison, where he was detained for a year and a half, during which period he was tortured, as a result of which he is now deaf in one ear and suffers from rheumatism. In 1997 the petitioner was moved to work at Annaba, a seaside town which was relatively calm and free from terrorist activities but not far away from the mountains where the terrorists lived. The petitioner was the family's principal breadwinner and, because of the poor economic situation in Algeria, could not afford to lose his regular job. As a customs officer he received gifts in addition to his salary. He maintained Samir financially although he lived in the family home. He bought a house in Annaba, to which Samir brought his friends who were in need of medical or financial assistance. In 1997 the Islamist violence increased and in order to obtain funds they set up road blocks. Since the petitioner, as a customs officer, knew about goods coming into Algeria, members of the Islamic group his brother worked for, Nabil Sahraoui, asked him to tell them about the nature of the containers and their destination and he agreed. The Islamists were most interested in containers of food and clothes and in summer 1997 he began to tell them about these and where they were destined for. He also continued to allow his house to be used by Islamists who required medical treatment. After the victory of Mr Bouteflika in the presidential election of 1998, "the Nabil Sahraoui" got in touch with him and asked him for details of how the port was organised, particularly details of port security. In 1999 he was told that the Islamists were planning an operation against the port, to which he was completely opposed. The Islamists told him that they wanted to attack the port and other places to prove that Algeria was not as safe as President Bouteflika claimed. He told them that he would help them as long as they were victimised by the government, but only so long as they did not victimise innocent people. He told his brother that he did not wish to be involved any further and that he no longer wished him or the Islamists to come to his home. One of the Islamists was captured by the security forces during a road block set up by the Islamists. His brother contacted him to advise him of this as he knew that once an Islamist was taken alive the security forces would obtain from him details of whatever they wanted to know, including the names and addresses of people who helped the Islamists. Once he heard about the capture of the Islamist the petitioner fled as he knew he would be a wanted man. The security forces went to his homes in Annaba and Batna looking for him and his brother. He knew that, as he worked for the state, his punishment would be twice as severe as that given to Islamists. He and his brother hid in the house of friend outside Annaba. The Islamists proposed that they should join them in the mountains, but with the help of two colleagues at the port he hid in the boot of a car and boarded a ship bound for France in December 1999. If he is returned to Algeria he fears persecution, torture and death from the state because of his active support of Islamists in Algeria. The risk to him is increased by the fact that he worked for the government. His father was so fearful that he changed the family name. Samir was killed in conflict with the state. [16] At the hearing before the adjudicator the petitioner gave oral evidence through an interpreter. The adjudicator found that his credibility was undermined by, among other things, inconsistencies and implausibilities in that evidence. According to the adjudicator, the petitioner was asked a number of direct questions by the respondent's representative but frequently prevaricated. On a number of occasions he did not answer the question but talked about another unrelated issue even though both he and the interpreter confirmed that they could understand one another. He stated that his brother was an Islamist but not a member of the FIS, although he came into contact with other members of the FIS. He later stated that his brother worked for the FIS after being released from prison but immediately contradicted himself by saying that his brother did not actually work for the FIS but worked in "the political arena" which was "wide open for anyone to do what they wanted". He stated that his brother was not a member of the GIA. He was asked directly if he provided support for his brother and other Islamists. He replied that he did not provide support but that it was only a matter of "not putting anyone in danger". When pressed he claimed to have provided financial and logistical support to the FIS. He could not name the leader of the FIS party, claiming that nobody knew who was in charge of the FIS party, since it was outlawed. When reminded of the offer of amnesty he claimed he did not accept it because he had done nothing to benefit from the amnesty. He could not name the various Islamic groups he claimed to have assisted. He could define them only as "friends and people I was brought up with". The adjudicator found that the evidence of the petitioner was so vague and contradictory that he could not find him to be a credible witness. He rejected the petitioner's evidence that was an active supporter of the FIS and other anti-government forces. He held that, on the evidence before him, the petitioner did not face torture or inhuman and degrading treatment or punishment and that he had not established that he had any subjectively genuine or objectively well-founded fear of persecution by the state or its agents.The grounds of challenge in the petition
[17] There are two separate grounds of challenge to the determination of the IAT contained in the petition. They are to be found in statements 7 and 8 respectively. I shall deal with each in turn. [18] The first ground of challenge is set out in statement 7 of the petition. The point which the petitioner seeks to make can be found in the following averments:"In short, despite evidence from the petitioner that his brother had been at the relevant time a member of the GSPC, the Salafist Group for Preaching and Combat, and was associated with, in particular, a faction headed by Nabil Sahroui, the Home office representative repeatedly cross-examined the petitioner with reference to his brother Samir's involvement with, and membership of the FIS, the Islamic Salvation Front. While Samir had been a member of the FIS from its inception, that organisation had been outlawed in 1992, and Samir, together with many other Islamists, had thereafter supported other organisations with similar aims to those of the FIS. The petitioner gave assistance and shelter to his brother and colleagues at his house in Annaba during the period from 1997 to 1999 approximately. Questions about the FIS were irrelevant to events at that time. The Home Office representative realised his error while the agent for the petitioner was making her submissions, and after his cross-examination had been concluded. The petitioner was confused by this line of questioning. The adjudicator was likewise confused ... The confusion on the part of both the petitioner and the adjudicator was caused by the confusion on the part of the Home office representative in questioning the petitioner in relation to the FIS and their activities. That confusion resulted in the proceedings before the adjudicator being unfair to the petitioner due to him (sic) being asked and being expected to answer, through an interpreter, without inconsistency or prevarication, detailed questions based on a premise that had historical, but no practical, relevancy. It also resulted in the adjudicator addressing himself to the wrong question, and taking into account irrelevant matters. The determination of the adjudicator is accordingly unlawful, and tainted by procedural irregularity."
Remedy
[27] As the petitioner has failed in his application for judicial review the question of remedy does not arise as a practical matter, but, as I heard submissions on the question, it is appropriate that I should state what order I would have made had the petitioner been successful. [28] Until the First Hearing commenced on 1 June 2005 the petitioner sought reduction of only the determination of the IAT. In my view that was the correct remedy for him to seek when the petition was drafted in June 2004. I refer to what I said about this question in Mahmood v Secretary of State for the Home Department [2005] CSOH 52 at paras 65-75. When the First Hearing commenced Mr Govier adjusted the petition to seek also reduction of the determination of the adjudicator. The reason why he did so is as follows. The Second Hearing in Mahmood concluded on 18 March 2005. Since then there have been certain statutory changes which affect the question of remedy in a case such as this. The Asylum and Immigration (Treatment of Claimants etc) Act 2004, which for present purposes came into force on 4 April 2005, abolished adjudicators and the IAT and replaced them with a single entity, the Asylum and Immigration Tribunal ("AIT"). The Asylum and Immigration (Treatment of Claimants etc) Act 2004 (Commencement No.5 and Transitional Provisions) Order 2005 (SI 2005 No 565) enacted, by articles 4(b) and 6, certain transitional provisions for dealing with pending appeals to the IAT, but those provisions do not apply to the present case. Indeed, no transitional provision has been enacted to deal with an application for asylum brought under the Immigration and Asylum Act 1999 in which an application for judicial review of the decision of the IAT is successful on or after 4 April 2005 (presumably on the falsely optimistic view that all such cases would have been long since dealt with). Accordingly, had the petitioner been successful, the only course open to me would have been to reduce the determinations of both the adjudicator and the IAT and to remit the case to the AIT with an order to treat it as an appeal against the decision of the respondent to refuse the petitioner's application for asylum.Decision
[29] I am satisfied, for the reasons given above, that this application to the supervisory jurisdiction of the court is wholly without merit. I shall repel the pleas-in-law for the petitioner, sustain the pleas-in-law for the respondent and dismiss the petition.
