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You are here: BAILII >> Databases >> Special Immigrations Appeals Commission >> B v Secretary Of State For The Home Department [2016] UKSIAC SC_09_2005 (15 September 2016) URL: http://www.bailii.org/uk/cases/SIAC/2016/SC_09_2005.html Cite as: [2016] UKSIAC SC_09_2005 |
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Neutral Citation Number: [2016] UKSIAC SC_09_2005
Appeal No: SC/09/2005
Hearing Date: 19 July 2016
Date of Judgment: 15 September 2016
SPECIAL IMMIGRATION APPEALS COMMISSION
Before:
THE HONOURABLE MR JUSTICE FLAUX
BETWEEN:
B
APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
For the Appellant: Ms Stephanie Harrison QC and Mr Anthony Vaughan
Instructed by: Birnberg Peirce & Partners
For the Respondent: Mr Robin Tam QC
Instructed by: Government Legal Department
JUDGMENT
See also: [2016] UKSIAC SC_09_2005_2
The Honourable Mr Justice Flaux:
Introduction
1. The Secretary of State applies to strike out this appeal on the grounds that the appellant is in continuing and contumelious contempt of court in failing to comply with the Order of the Commission that the appellant should disclose his true name and identity to the Secretary of State and to the Commission, alternatively for abuse of process. The appeal has already been struck out on these grounds by the judgment of the Commission (presided over by Irwin J) dated 1 July 2014. However, that decision was overturned by the Court of Appeal on 6 May 2015 ([2015] EWCA Civ 445; [2015] 3 WLR 1031), so far as the issue of strike out is concerned on the narrow ground that, in that judgment, the Commission had failed to address the appellant's reasons for refusing to comply with the Order which were, as Lord Dyson MR put it at [44] of his judgment, that the appellant: "had a well-founded fear that if he [revealed his identity] he would put his family at risk of reprisals from the Algerian authorities".
"50. The appellant's refusal to disclose his identity lay at the heart of the strike out application. In deciding whether it was just and proportionate to strike out the appeal, SIAC should have determined whether the appellant's explanation for his refusal to disclose his identity was genuine and sufficiently compelling to justify conduct which prima facie was a serious abuse of process. It did not do so. It did not make an assessment of the gravity of the risk of reprisals. Ms Harrison has drawn our attention to certain case-law which indicates that Algeria
is a country where torture is systematically practised by the state and family members of those at risk are themselves at risk of treatment contrary to article 3 of the Convention: see, for example, W (
Algeria
) v Secretary of State for the Home Department
[2012] UKSC 8;
[2012] 2 AC 115 at paras 4 to 6. But that is no substitute for an assessment by SIAC.
51. Mr Tam submits that the omission was not material because no reasonable Commission could have come to any conclusion other than that it was just and proportionate to strike out the appeal. In other words, SIAC would have been bound to reach the conclusion expressed in para 38 of its judgment even if it had taken into account the fact that the reason for the appellant's refusal to provide the information was his fear of reprisals against his family. This was a case of a deliberate and contumelious refusal to comply with SIAC's order. The reasoning at para 60 (see para 11 above) would inevitably have led SIAC to strike out the appeal as an abuse of process even if it had taken the fear of reprisals into account.
52. I accept that there still could have been a strong case for striking out the appeal even if SIAC had been satisfied that the reason why the appellant refused to comply with the order was his fear of reprisals against his family. The public interest in protecting the integrity of the court and its processes is a powerful factor which strongly militated in favour of the order that SIAC made. The question whether the appellant had a sustainable claim that the notice of intention to deport was in breach of his rights under article 3 of the Convention was the very issue that SIAC had to decide. That could only be properly decided with evidence about the appellant's personal circumstances. This in turn required that SIAC should know who he is.
53. I accept the submission of Mr Tam that, prima facie, to have permitted the appellant to proceed with the appeal, and to profit from the deliberate use of a false identity and his grave contempt of court, would seriously undermine the public interest in orders of the courts being obeyed, and would seriously damage public confidence in the administration of justice.
54. But I cannot be certain that, if SIAC had taken the fear of reprisals into account in the balancing exercise that it had to perform, it would have struck out the appeal.
55. I would, therefore, grant permission to appeal in relation to the first (and principal) ground of appeal, allow the appeal on this ground and remit the case to SIAC for further consideration in the light of this judgment."
The factual background
4. The factual background is tortuous and complicated, although not really in dispute. Much of it was set out in detail in the judgment of the Commission (again presided over by Irwin J) dated 13 February 2014 addressing issues as to the prospects of the appellant's removal to Algeria
and whether the bail conditions imposed upon him constituted a deprivation of his liberty. So far as relevant, that background can be summarised as follows.
8. The Commission commenced hearing the appeal on 17 July 2006, when it was agreed that the case fell into two parts: (i) the national security case and (ii) the safety on return case. For a number of reasons, including that the appellant refused to disclose his true identity, it was agreed that the safety on return case could not be dealt with. Accordingly, after the national security case had been heard, the appeal was adjourned part heard. On 11 December 2006 the Secretary of State made a formal request for information regarding his true identity through his solicitors. There was no response. On 12 January 2007, the Commission made a direction pursuant to rule 39(1) of the Special Immigration Appeals Commission (Procedure) Rules 2003 ["the SIAC Rules"] that the appellant should provide information as to his true identity, including his full name, his place of birth and birth certificate or any other supporting documentation, the full names of both of his parents and their current addresses and all the addresses at which he had lived in Algeria
. He was also directed to give written consent to the taking of a non-invasive sample for DNA testing. The appellant consented to provide a DNA sample but otherwise refused to comply with this direction. His solicitors wrote on 19 January 2007, stating they were unable to provide further information.
"By order dated 19 July 2007 you were directed to provide the following information:-
1. Your full name.
2. Your place of birth certificate, or any other documentation supporting this.
3. The full names of both parents and their current addresses.
4. All addresses at which you lived in Algeria
.
You must within 14 days of the service of this order upon you comply with 1‑4. If you, [the Appellant] disobey this order you may be held in contempt of court and may be imprisoned, fined or have your assets seized. Any other person who knows of this order and does anything which helps or permits the Appellant to breach the terms of this order may also be held in contempt of court and may be imprisoned, fined or have their assets seized."
10. That Order was served on the appellant personally in early September 2007. In February 2008, following the transmission of his fingerprints to Algeria
, Interpol
Algeria
confirmed that the prints matched those held for an individual with the name "MB" born on 2 March 1971. The British Embassy in Algiers then sought assurances from the Algerian Ministry of Foreign Affairs regarding the appellant's treatment if he were returned to
Algeria
and asked for confirmation that it was accepted that he was an Algerian national. On 17 June 2008, the British Government received a note verbale from the Algerian Ministry of Justice stating that the appellant was not the person MB identified by Interpol
Algeria
.
"[B's] concluded view... is that he cannot, safely, provide more information without endangering family members in Algeria
and that his priority must therefore be, as he considers it, the safety of his family."
"[It is] proved beyond reasonable doubt that the appellant has made a conscious and rational decision to refuse to comply with that order, notwithstanding his mental health difficulties ... Even if the appellant is telling the truth that he is concerned that revealing his identity and the other matters in directions 1 to 4 of the order might (in his view) put his family at risk in Algeria
- notwithstanding that he is aware of and understands the respondent's undertaking to the Commission regarding restrictions on the use of that information - it is manifest that the appellant has deliberately and contumeliously refused to comply with the Commission's order. The question, accordingly, is what steps, if any, the Commission should take in the face of this contempt."
14. The Commission ordered that the appellant be committed to prison for four months, but that the committal Order should be suspended pending his appeal to the Court of Appeal. He remained on bail. The appeal was heard on 6 July 2011 and, in its judgment of 21 July 2011, a majority of the Court of Appeal dismissed the appeal: B (Algeria
) v SSHD [2011] EWCA Civ 828. In his judgment, Longmore LJ summarised the difficulty caused by the appellant's refusal to disclose his true identity, in particular the fact that, in the absence of any evidence of his identity,
Algeria
refused to recognise him as Algerian. As Longmore LJ put it at [5]:
"B, by refusing to disclose his identity, appears to have successfully frustrated any attempt by the Secretary of State to deport him to Algeria
or for that matter anywhere else."
"Many people might think that a sentence of 4 months for a deliberate and contumelious contempt, frustrating the Secretary of State's intention to deport B and causing SIAC great difficulty in its final disposition of the appeal before it, is a sentence which is comparatively merciful."
18. At a hearing on 28 and 29 January 2014, the Commission considered issues as to the prospects of the appellant's removal to Algeria
and whether the bail conditions imposed upon him constituted a deprivation of his liberty. In its judgment handed down on 13 February 2014, the Commission determined at [48]-[51] that, in relation to the first issue, the principal cause of the difficulties faced in removing the appellant to
Algeria
was his resolute defiance of the Order of the Commission that he disclose his true identity. As the Commission concluded at [51]:
"...in the absence of a change of mind by B, there is a very low prospect that he will be able to be removed to Algeria
".
"If the matter proceeded, it would be likely to favour the appellant. That would be as a consequence of his manipulation of information, his contempt and abuse of process. It would be an encouragement to others to behave in a similar way. It would be an unjust outcome. Striking out the appeal will not remove his subsisting Convention rights nor prevent access to an appropriate, although perhaps less convenient or apt, effective legal remedy. A striking out will protect the integrity of SIAC. For those reasons we consider such an Order to be appropriate and just."
The judgment in W and others
21. However, the position as regards the effectiveness of such assurances has now changed, as a consequence of the judgment of the Commission (presided over by Irwin J) in W and others v SSHD [2016] UKSIAC SC/39/2015 on 18 April 2016. That decision concerned six of the Algerian nationals who were found by the Commission to constitute a threat to national security. The Court of Appeal in BB and others v SSHD [2015] EWCA Civ 9 had allowed their appeals against the previous decision of the Commission that the treatment to which they might be subjected on return to Algeria
if deported would not violate Article 3 of the ECHR and had remitted their appeals to the Commission for rehearing and reconsideration. Following that rehearing, by its judgment dated 18 April 2016, the Commission decided that there was a real risk of a breach of Article 3 by virtue of ill-treatment, if the appellants were returned to
Algeria
, and that the means of verification advanced by the Secretary of State that the Algerian authorities would adhere to assurances given, did not amount to a robust system of verification. The appeals were accordingly allowed.
22. It will be necessary to consider that judgment in more detail hereafter, in the context of reliance upon it by the appellant in support of his position that disclosure of his identity would put his family at risk of ill-treatment in Algeria
. For the present, it is simply to be noted that the judgment was in relation to issues common to all those Algerian appellants, a generic decision, not one specific to the particular circumstances of the individual appellants. The Commission expressed its conclusion at [116] in these terms:
"Our conclusions can be simply stated. Viewing the evidence as a whole we are not convinced that the improvements in conditions in Algeria
are so marked or so entrenched as to obviate the need for effective verification that the authorities will adhere to the assurances given. It is not inconceivable that these Appellants, if returned to
Algeria
, would be subjected to ill-treatment infringing Article 3. There is a real risk of such a breach. The different means of verification of adherence advanced by the Respondent do not, taken together, amount to a robust system of verification."
The applicable legal principles
25. The Secretary of State seeks to strike out the appeal on two related grounds: (i) the appellant's continuing and deliberate contempt of court and (ii) the appellant's abuse of the legal process which he has invoked by his appeal to the Commission. So far as the contempt of court is concerned, the Commission, like any other court has a free-standing discretion as to whether to hear the contemnor. The applicable principles are set out in [9]-[28] of the judgment of Moore-Bick LJ in JSC BTA Bank v Ablyazov [2012] EWCA Civ 639 as further considered and applied by Popplewell J in the later judgment in the same case of contempt: JSC BTA Bank v Ablyazov [2013] EWHC 1979 (Comm). Popplewell J summarised those principles at [13] of his judgment:
"Ultimately, the question is whether, taking into account all the circumstances of the case, it is in the interests of justice not to hear the contemnor. Refusing to hear a contemnor is a step that the court will only take where the contempt itself impedes the course of justice. What is meant by impeding the course of justice in this context comes from the judgment of Lord Justice Denning in Hadkinson v Hadkinson [1952] P 285 and means making it more difficult for the court to ascertain the truth or to enforce the orders which it may make: see page 298."
26. At [20] of his judgment, he continued:
"One of the justifications for the principle is that a contemnor is to be deprived of the opportunity to seek to influence the court's decision-making process if he does not recognise the authority of the court and is not willing to abide by its decisions. In this particular case, Mr Ablyazov wishes to have his submissions addressed to the court in order ... to safeguard his interests in relation to the order which the Bank seeks. That is an attempt on Mr Ablyazov's part to influence the court's decision so as to take account of his interests. The reason, or one of the reasons, why a contemnor may not be permitted to do that, is that it is contrary to the interests of justice to allow him to ask the court to take into account his interests when he is not prepared to abide by the court's decisions should the court decide the issue against his interests."
29. The circumstances which might amount to abuse of process are not circumscribed, as is clear from the classic statement of principle by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536:
"This is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied ... It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the Court has a duty (I disavow the word discretion) to exercise this salutary power."
30. That statement of principle was cited and approved by Lord Clarke in the judgment of the Supreme Court in Summers v Fairclough Homes Ltd [2012] UKSC 26; [2012] 1 WLR 2004. That was a case concerning fraudulent exaggeration of injury by a claimant and the question which arose was whether the court could strike out the claim as an abuse of process even after trial. The Supreme Court held that the court could strike out a statement of case at any stage of proceedings, including after trial, although the power would only be exercised after trial in exceptional circumstances, where the court was satisfied that the abuse of process was such that the abusive claimant had forfeited the right to have the claim determined. The factual circumstances of that case are thus far removed from the present case, but the relevant principles as stated by Lord Clarke are applicable in any case of abuse of process.
"The pre- CPR authorities established a number of propositions as follows.
(i) The court had power to strike out a claim for want of prosecution, not only in cases of inordinate and inexcusable delay which caused prejudice to the defendant, but also where the court was satisfied that the default was "intentional and contumelious, eg, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court": Birkett v James [1978] AC 297, 318, per Lord Diplock. In the latter case it was not necessary to show that a fair trial was not possible or that there was prejudice to the defendant. See also, for example, Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426, 1436H, per Lord Woolf MR (with whom Waller and Robert Walker LJJ agreed).
[Lord Clarke then cites at (ii) the passage from Hunter set out above.]
(iii) The court had power to strike out a claim on the ground of abuse of process, even though the effect of doing so would be to extinguish substantive rights. It follows from the conclusion in Birkett v James [1978] AC 297, that the court could strike out a claim as an abuse of process for intentional and contumelious conduct amounting to an abuse of the process of the court without the necessity to show prejudice, that the fact that a strike out might extinguish substantive rights is not a bar to such an order.
(iv) Although it appears clear that in the vast majority of cases in which the court struck out a claim it did so at an interlocutory stage and not after a trial or trials on liability and quantum, the cases show that the power to strike out remained even after a trial in an appropriate case."
"...one of the objects to be achieved by striking out a claim is to stop proceedings and prevent the further waste of precious resources on proceedings which the claimant has forfeited the right to have determined."
Risk of ill-treatment
33. With those principles in mind, I turn to consider the appellant's case that, whilst it is accepted on his behalf that he is in contempt of court, the reason for his refusal to comply with the Order is a well-founded fear that, if he does disclose his identity, there is a risk of reprisals against his family in Algeria
, particularly from the Algerian Security Service, the DRS. Ms Harrison QC, whilst recognising that the appellant is nonetheless in contempt, submits that his refusal to provide his identity is explicable in those circumstances, so that it would be disproportionate to strike out his appeal.
34. One of the striking aspects of this case, is that, although Lord Dyson MR referred to the appellant having: "a well-founded fear that...he would put his family at risk of reprisals..." there is simply no evidence from the appellant to that effect. Nor has he adduced any evidence from himself or anyone else that his family in Algeria
would be or might be at risk of reprisals. Indeed, he has not in fact adduced any evidence that he has any family in
Algeria
at all. The highest it can be put on his behalf is that, in an interview with a psychiatrist who produced a report on him in March 2004 (a report which was put before the Commission at the present hearing), he asserted that he had family in
Algeria
. What is essentially relied upon on his behalf is material concerning the risks of reprisals by the DRS against family members of returned Algerians, gleaned from other Algerian cases before the English courts.
36. The case of W and others is one of a number of appeals before the Commission commenced in 2005 by Algerians involved in terrorist activities who were resisting return to Algeria
. The issue of safety on return for various of these appellants was considered by the Commission in U v SSHD [2007] UKSIAC 32/2005. One of these, Q, was detained on his return to
Algeria
by the DRS. Amnesty International expressed concern that he would be subject to torture and an official in the British Embassy spoke to Maitre Mohammed Amara, a judge and senior official at the Algerian Ministry of Justice who gave assurances that Q had spoken to his family. His family subsequently visited him in prison. Another returned Algerian national, H, was detained on his return. The evidence before the Commission was that he had had contact with his brother and his mother whilst in detention. Mr Tam QC submitted that this picture of contact with family members on return was wholly inconsistent with the suggestion that there was a risk of reprisals by the DRS against family members simply for being family members. If that were so, they would have made themselves scarce and not had any contact.
37. The decision of the Supreme Court in W(Algeria
) v SSHD [2012] UKSC 8; [2012] 2 AC 115 recognised that in appropriate cases, the Commission could make, on an ex parte basis, irrevocable non-disclosure orders giving confidentiality to potential witnesses who wished to give evidence of ill-treatment of returned persons but feared ill-treatment themselves if they gave such evidence. Lord Dyson JSC identified the circumstances in which such an order would be appropriate at [34] of his judgment:
"SIAC should be astute to guard against the danger of abuse and should scrutinise with great care and test rigorously the claimed need for an order. But if SIAC (i) is satisfied that a witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return and (ii) has no reason to doubt that the witness genuinely and reasonably fears that he and/or others close to him would face reprisals in Algeria
if his identity and the evidence that he is willing to give were disclosed to the AAs, then in my view an irrevocable non-disclosure order should be made."
38. Following that determination that the Commission could make such orders, the Commission did make protective orders in W and others because it was satisfied that potential witnesses had reasonable concerns about reprisals if the evidence they would give were known to the Algerian authorities. At the subsequent hearing before the Commission, evidence emerged about the conditions in which returned Algerians were held at Antar barracks for up to twelve days upon arrival in Algeria
, so called Garde a vue detention. This evidence emerged because of the detention of AB, a British citizen who was deaf. Because he was British, details of what had happened to him were passed to the British Embassy. It was accepted by Mr Anthony Layden, a witness called by the Home Office who was the Special Representative for Deportation with Assurances ("DWA") at the time, that his treatment had been degrading (see [6]-[9] of the judgment of Sir Maurice Kay in BB and others [2015] EWCA Civ 9). Ms Harrison QC pointed out that appellants who had been returned to
Algeria
, including Q and H in 2007, had been subjected to Garde a vue detention for up to twelve days on return.
39. Given such detention, the Commission considered whether the means of verification was adequate and, at [40] of its judgment in BB and others v SSHD [2013] UKSIAC 39/2005, the Commission (presided over by Mitting J) concluded that they were adequate. In relation to verification through contact with family members, the Commission said:
"British embassy contact with the detainee and family members, before, during and after release, if facilitated by them, is effective, as the case of Benmerzouga demonstrated (T ยง 17). We do not accept Miss Rose's submission that family members will be deterred from contact with the British embassy or may not tell the truth out of fear of the Algerian authorities. Two striking open examples demonstrate why that proposition is erroneous. Q, from within Serkadji Prison, wrote an open letter in his own name to Ouseley J protesting about the treatment which he said he had received in garde a vue detention and then in prison. Benmerzouga confirmed the date of his release and that he was well and at home by telephone to a female British embassy official. Miss Rose did not suggest that he had not told the truth. She did, however, advance a further proposition that no Algerian will dare speak on the telephone about malpractice by the DRS, for fear of the consequences, because telephone calls are intercepted. We regard this proposition as far-fetched. Not even the DRS has unlimited manpower and resources. It would be unproductive to devote both to monitoring the telephone calls of detainees who have been released, because there was no ground upon which to detain or prosecute them. The proposition that it will is untenable."
"It seems to me that we can only begin to question the reliance by SIAC upon family members as an effective source of verification if Ms Rose can persuade us that the "far-fetched" comment cannot be justified because the evidence established that family members are significantly deterred from complaining about the ill-treatment of detainees and the conditions in which they are held because they fear that their telephone conversations with British officials will be intercepted by the DRS and they will thereafter be at risk of reprisals. In this connection, Ms Rose relies principally on the evidence of Mr Anthony Layden. I have read again the transcript of his cross-examination by Ms Rose. Although it took place in protected conditions, I consider that the following edited extracts can be included in this open judgment:
'Q: Do you accept that it is correct that telephone calls in Algeria
are routinely monitored or are believed to be monitored by the DRS?
A: Yes. I do not think that the monitoring is universal but the DRS probably ....that will be one of the main ways they access information.
Q: So if people are afraid that information that they are giving would lead to adverse attention from the DRS, they will not be prepared to give that information by telephone, will they?
A: I agree.
......
Q: You have accepted ... that telephone calls are often monitored in Algeria
.
A: Yes.
Q: The assurances that you have with the Algerian state do not protect family members, do they?
A: They do not. They only protect the detained deportee
.....
Q: Will you accept that the fear of members of the family may be particularly great when other members of the family, not just the person in detention, have themselves been harassed or abused by the DRS?
A: That is a reasonable point to make, yes.
.....
A: It is a fair point to make that they might be afraid to talk to the British Embassy. On the other hand, and I have to say this, again and again I come to the and yet question ....documented allegations of ill-treatment of people in Algeria
have consistently come out, even in times when the situation was much more terrifying than it is today, so the Algerian authorities must calculate, if they did that to one of our people, we would get to know about it.'"
41. At [40] Sir Maurice Kay comments on this evidence:
"At the very least, this evidence established both that the DRS do monitor telephone calls (which were the means of communication encouraged by the British Embassy) and that people, including family members, may consequently feel inhibited about saying anything in the course of such conversations which might lead to reprisals. It would be a subjective fear with an objective justification."
"80. The first point to consider in this context is the question whether a detainee who is being mistreated will raise a complaint with his family during telephone contact. There is no evidence upon which we could conclude that the telephone conversation will be confidential. Common sense suggests that many detainees might choose not to raise a complaint in such circumstances for fear of stimulating reprisal. Equally, if a complaint were raised, many families might take a similar view. There is the further consideration that, if a detainee and his family felt it was too risky to complain of mistreatment at the time, then subsequent complaint may be dismissed because the complaint was not made at the time.
81. At several points in her evidence, Dame Anne expressed a very firm view that families who were informed by a detainee of mistreatment would always complain, such would be their concern for their relative. We consider her view here to be definitely too sanguine."
"In considering publicity or public complaint by families as a means of verification, the question must not be confined to asking whether family members are justified in being afraid: the question must be, at least in part, whether they will actually be afraid. Taking a "holistic" view of this issue, we cannot conclude with any confidence that families would report misconduct unless they are confident they will get a positive response from the authorities or the press, the legal system, or the British embassy. Moreover, complaint by families can only be effective if it can evoke a protective, or helpful, response from others in a position of power or influence. In practical terms, the calculation for a detainee and his family as to whether to raise a complaint must relate to the response by the press, the Algerian authorities, NGOs and/or potentially the British embassy."
44. Ms Harrison QC submitted that this passage demonstrated that neither the press nor the Algerian authorities, nor the NGOs nor the lawyers and courts were sufficient to protect individuals from reprisals. She submitted that, overall, the judgment of the Commission in W and others does demonstrate that there is a climate of fear of reprisals by the DRS, infecting the whole system in Algeria
, including courts and lawyers as well as doctors.
46. Asked whether in her estimation it was necessary to ask the Algerian Government to provide assurances in respect of families and lawyers she said: "I would think that would be advisable". A little later she expanded on that point: "No, I was saying it came back to my earlier point, assurances for the returnees but making clear to the Government of Algeria
that we are in touch, if we are, with the family and lawyers and that that contact is there".
47. Ms Harrison QC submitted that making this clear to the Algerian authorities was necessary because of the recognition that family members and lawyers of terrorist suspects may be at risk of reprisals from the DRS. Ms Harrison QC also relied upon an anonymised statement dated 23 November 2012 of a witness who had travelled to Algeria
in 2008 to determine the risks faced inter alia by returnees. This referred to the fact that lawyers for terrorist suspects were regarded by the President as traitors and were the targets of prosecution themselves.
"339IA. For the purposes of examining individual applications for asylum
(i) information provided in support of an application and the fact that an application has been made shall not be disclosed to the alleged actor(s) of persecution of the applicant, and
(ii) information shall not be obtained from the alleged actor(s) of persecution that would result in their being directly informed that an application for asylum has been made by the applicant in question and would jeopardise the physical integrity of the applicant and his dependants, or the liberty and security of his family members still living in the country of origin."
Should contempt and/or abuse of process still lead to striking out?
57. However, she submits the position is now completely different. As a consequence of the generic decision in W and others, the appellant's appeal if allowed to proceed, should succeed for the same generic reason, to which his deliberate refusal to disclose his identity is of no relevance, because the Commission has already found that, on a balance of probabilities, he is Algerian, so that his return to Algeria
would be in breach of Article 3. In those circumstances, striking out his appeal would be disproportionate and unjust. In addition, whilst he has not purged his contempt, he has served the sentence of imprisonment which was his punishment for it, so that it would be disproportionate to punish him again by striking out the appeal.
59. Mr Tam QC submitted that the appellant was still preventing the Commission from having all the evidence about him available in order to achieve a just result. He submitted that the appellant was, in effect, forcing the Commission to treat him as one of the main cohort of Algerians to whom the principles in W and others would apply and the process was accordingly unfair. Any Order in his favour would still mean that he was profiting from his contempt and manipulation of the process. Mr Tam QC submitted that this was not a case where the Commission need have any concern that the effect of striking out the appeal would be to extinguish the appellant's Article 3 rights. The relevant right is not to be deported to a country where he would or might suffer ill-treatment. Striking out the appeal would not extinguish that right: if any question arose hereafter of seeking to deport him to Algeria
, he would be able to exercise that right again.
62. In the circumstances, if I considered that the appellant's continuing and deliberate refusal to disclose his identity was still operating to any extent in determining the outcome of this appeal, I would have no hesitation in striking out the appeal, particularly in circumstances where, as I have found, there is no evidence of a fear of reprisals against his family, which might have gone some way towards justifying the appellant's position. However, it seems to me that his refusal to disclose his identity will no longer have any effect on the outcome of the appeal. Irrespective of that refusal, he is clearly an Algerian and, as such, cannot be returned to Algeria for exactly the same generic reasons as the appellants in W and others (and the other Algerian appellants in relation to whom the secretary of state has accepted that those reasons would apply).
The outcome of the appeal