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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_2 (12 December 2016) URL: http://www.bailii.org/uk/cases/SIAC/2016/SC_09_2005_2.html Cite as: [2016] UKSIAC SC_09_2005_2 |
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Neutral Citation Number: [2016] UKSIAC SC_09_2005_2
Appeal No: SC/09/2005
Hearing Date: 19 July 2016
Date of Judgment: 12th December 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
FURTHER JUDGMENT
See also: [2016] UKSIAC SC_09_2005
The Honourable Mr Justice Flaux:
"Ms Harrison QC urged the Commission, if it did not strike out the appeal, to proceed to determine it in the appellant's favour on the basis that his case was indistinguishable from that of the other Algerians to whom the principles established in W and others would apply. I see considerable force in that submission. However, in fairness, it seems to me that the Secretary of State should be afforded an opportunity to put forward any further submissions as to why the Commission should not apply W and others and allow the appeal. I will allow the Secretary of State 14 days from the date of hand down of the judgment in which to put forward any submissions in writing or to indicate that, in the light of this judgment, it is accepted that the appeal succeeds. If submissions are put forward, the appellant's representatives are to have 14 days thereafter to put in any submissions in response. In that event, I will either convene a further hearing to determine the appeal or, if the parties agree, determine the appeal on paper."
"11. Nevertheless, the Secretary of State has reviewed her entire position in relation to B's appeal in the light of SIAC's decision and its direction that she should, in effect, do so.
12. The Secretary of State accepts that B is a person who has been established to have been involved in the terrorism-related activities which are the basis for the Secretary of State's decision to deport him, and that he either is Algerian or is not Algerian.
13. In those circumstances, if SIAC were to conclude after that full examination of the evidence that B is Algerian, the Secretary of State recognises that she would be unlikely to persuade SIAC to distinguish his case from those in W and others.
14. Alternatively, if SIAC were to conclude after that full examination of the evidence that B is not Algerian, as things currently stand there is no destination to which B can be deported and it will not necessarily be the case either that SIAC will be able to make a finding about B's nationality, or that any such nationality will be one which does not present any difficulty for deportation (such as, for example, if B is in fact a French national). In those circumstances, the Secretary of State accepts that it would not be appropriate for her to pursue the deportation action that is currently underway.
15. For those reasons, in all these circumstances (including the fact that SIAC has dismissed the Secretary of State's strike-out application for the reasons given by SIAC on 15 September 2016) the Secretary of State would now no longer oppose a decision of SIAC allowing B's appeal against the Secretary of State's decision to deport, even though she does not agree that B's analysis is correct or appropriate.
16. In these circumstances, when SIAC has made that decision (which will constitute a final determination of B's appeal for the purposes of section 7 of the Special Immigration Appeals Commission Act 1997) the Secretary of State will then give consideration to what further steps she will take in relation to B's case."
7. Ms Harrison QC submitted that, given the acceptance by the Secretary of State that the appeal must be allowed, it is not strictly necessary to deal with what she describes as "a number of contentious points" arising from the written submissions of Mr Tam QC of 29 September 2016. Nevertheless Ms Harrison QC does deal with the points raised. First she submitted that the various evidential points raised by the Secretary of State in [7] of those submissions are entirely irrelevant to the issue in the appeal which is whether the appellant is at real risk of harm within the meaning of Article 3 of the ECHR if deported to Algeria
, which did not require a finding that he was in fact an Algerian national, since the destination in the deportation notice was, and always had been,
Algeria
. That seems to me to be a perfectly valid point and, in any event, given the acceptance by the Secretary of State that whatever his nationality, there is no destination to which the appellant can be deported, the appeal must be allowed.
9. I accept that submission. The consistent position of the Secretary of State that the appellant is an Algerian national is reflected in and confirmed by the various judgments and rulings of the Commission. Thus, in 2003 the Commission found that B had been an active member of two Algerian terrorist organisations (the GSPC and the GIA) and had not denied associations with two Algerian terrorism suspects (known as U and Z, two of the successful appellants in the W & Others case), concluding: "B is a citizen of Algeria
".
12. As set out in [18] of the judgment of 15 September 2016, 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. As Ms Harrison QC correctly submits the issue as to whether the appellant was an Algerian was directly in play. The Commission had before it detailed evidence on the issue, including a language analysis report commissioned by the Respondent indicating to a "high" degree of certainty that B is a Berber from Algiers. As Mr Tam QC accepted, in its judgment of 13 February 2014, the Commission concluded at [2] that B is: "very likely to be an Algerian national".
13. As recorded in [20] of the judgment of 15 September 2016:
"the basis upon which the Commission struck out the appeal in July 2014 was that the appellant's deliberate refusal to identify himself, in contempt of court, meant that he would have been able to manipulate the result of his appeal in his own favour. This was because, in the absence of evidence as to his identity, the Algerian government would not recognise him as Algerian and thus would not give the assurances in relation to this appellant which they had given in relation to others concerning safety on return."
14. I agree with Ms Harrison QC that the finding made by the Commission at the bail variation hearing on 14 June 2016 that, on a balance of probabilities B is Algerian, was necessary to determine the issue then raised, which was the likelihood of B absconding in circumstances where in the light of the judgment in W and others he was highly likely to win his appeal.
15. The Commission confirmed those findings made in February 2014 and June 2016 at [5] of the judgment of 15 September 2016. It was on that basis that the Commission concluded at [62] to [64] of the judgment that it would be disproportionate to strike out the appeal. At [62] the Commission held:
"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)."
16. In the circumstances, I agree with Ms Harrison QC that the Secretary of State has had every opportunity in this lengthy process to advance a case that the appellant is not in fact an Algerian, but far from doing so, has positively asserted the contrary, that he is Algerian, from 2003 up until the judgment in W and others in April 2016. Since then the Secretary of State has not advanced any positive case to the effect that he is not Algerian. The reason for that is not difficult to discern. There is no evidential basis for the conclusion that the appellant is anything other than Algerian.
20. In the circumstances and on the basis of the conclusion already reached by the Commission that the appellant is Algerian and therefore cannot be returned to Algeria for exactly the same generic reasons as the appellants in W and others, the appeal is allowed.