LA v Secretary of State for the Home Department  UKIAT 00TH00570
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 15/03/2000
Date Determination notified: 26 May 2000
Mr P R Moulden (Chair)
Mrs J H M Goodchild
Mr A A Lloyd JP
DETERMINATION AND REASONS
|Secretary of State for the Home Department
- The appellant, LAKHDAR ABDELOUAHAD, a citizen Algeria has been giyen leave to appeal against the decision of a Special Adjudicator (Mr L. V.Waurnsley) dismissing his appeal against the refusal of the respondent to grant him asylum.
- At the hearing before us the appellant was represented by Miss C. Bayati of Counsel instructed by Clore & Co, Solicitors. Mr T. Wilkie, a Home Office Presenting Officer, appeared for the respondent.
Immigration and appeal history
- The appellant is now 41 years of age. He arrived in the United Kingdom on 10th January 1997 and claimed asylum. The reasons for refusal letter is dated May 1997 and the notice containing the decision against which he appeals, 20th June 1997.
- The Special Adjudicator heard his appeal on 24th February 1999 and the determination was promulgated on 16th April 1999. Leave to appeal was granted on 27th April 1999.
The hearing before the special adjudicator and his determination
- The Special Adjudicator heard evidence from the appellant through an interpreter. The appellant is a policeman in Algeria. He joined the police in 1986 and was based in Boufariq. He enjoyed his job until the start of the conflict between the Algerian authorities and the armed Islamic groups in 1992. After 1993, and because of the risk from the GIA terrorists, he normally slept at the police station. He rarely returned to his wife and his home about 5 km away.
- He was involved in regular raids on the homes of suspected terrorists. His commanding officer ordered him, and his fellow officers, to shoot to kill when suspects returned fire or attempted to escape. The appellant objected to killing people in this way and tried to stay outside. This was noticed and on one occasion he was reprimanded by his commanding officer.
- At the end of 1995 the appellant asked for transfer to the Sahara. He was told that this would be difficult because there was a state of war. He continued to be involved in police raids including several on the local market. The police had to open fire. The appellant fired high to avoid hitting anyone but nevertheless wounded somebody.
- The appellant was present on one occasion when a terrorist suspect was tortured.
- In early 1996 the appellant started making preparations to leave the country. He could not resign from the police force. Because of the desertion rate policeman were not allowed to resign. He knew several police officers who had left the force and had subsequently been killed either by the police or the GIA. The appellant named three of them.
- Towards the end of 1996 the appellant went into hiding. He stayed with a friend in his hometown. He managed leave the country with the help of this friend and a former Brigadier who was in charge of the airport at Algiers. He used a passport, which he had already obtained in 1993 in case he wanted to leave to country. In the passport he was described as a plumber. He said this was a common practice, to hide the occupation of policeman from the GIA.
- The appellant said he was afraid that if he returned to Algeria he would be at risk from both the GIA and the police. The GIA would kill him because he was a former policeman. The authorities would discover that he was a former policeman who had deserted. He would be imprisoned, tortured and could be killed.
- The Special Adjudicator found that the appellant was not a particular reliable witness but nevertheless, by the lower standard, accepted the core of his claim. This included the facts which we have already set out.
- In the light of the country information before him the Special Adjudicator concluded that if the appellant were returned to Algeria he would be at risk from the GIA if he were identified as a former policeman. The police and the security forces were at risk from the terrorists. However, this did not constitute persecution within the meaning of the Convention. It was an inevitable risk of being involved on the side of the security forces in a long-running counter- insurgency operation against terrorists in a conflict which had claimed many lives.
- The Special Adjudicator accepted there was a significant risk that the appellant would be identified by the authorities as a deserter from the police force. The country information did not show that desertion from the police force constituted a criminal offence. However, in the refusal letter, the respondent had conceded that the appellant was likely to be tried by a military court. If so there was no evidence that he would not receive a fair trial or, if convicted, would receive a disproportionately severe sentence, either because of his desertion or any imputed political opinion which might arise as a consequence. There was no evidence that he would be tortured or killed extrajudicially.
- The Special Adjudicator went on to consider the appellant's position as a deserter or a draft evader. He was unable to find that the appellant had no mechanism by which he could have left the police force had he wished to do so. The duties he had to perform would not give rise to a genuine conscientious objection. He was not under orders to kill innocent civilians, only to shoot at terrorist suspects who had returned fire or were trying to escape.
- The grounds of appeal are contained in the appeal bundle. In summary, they argue that on the facts found by the Special Adjudicator he misdirected himself in concluding that the risk facing the applicant from the GIA did not constitute persecution for a Convention reason. The Convention reason was his actual or perceived political opinion. This was supported by the country information. The appellant should not be excluded from protection by virtue of the fact that he was a former member of the security forces. The GIA were agents of persecution. The authorities in Algeria could not offer protection to those who were under threat from them.
- Further grounds of appeal submit that, having concluded that the appellant was likely to be identified as a deserter, the country information indicated he was in risk of torture, disappearance and death whilst in detention. There was no evidence to support the Special Adjudicator's conclusion that members of the police in Algeria were allowed to resign. The duties he was forced to perform gave rise to a genuine conscientious objection. These included the occasion on which he was present whilst the suspect was tortured. Torture of suspects by the Algerian authorities was widespread and the evidence that the appellant was present on one occasion indicated that this was part of his duties. The appellant was put in the position where he had to shoot at innocent people, not just those who might be terrorists.
- The appellant was at risk of persecution as a failed asylum seeker. The country information supported this.
- In her submissions Miss Bayati relied on the grounds of appeal and referred us to a number of passages in the bundle of supplementary documentary evidence lodged by those instructing her.
- The authorities would not be in a position to offer the appellant protection against the GIA.
- As to the risk of persecution by the authorities the Special Adjudicator accepted that the appellant was at risk of being identified. He accepted that he was likely to be tried for desertion. The country information showed that those in custody could disappear, be tortured, or killed. In reply to our question Miss Bayati conceded there was no specific evidence to indicate how former policeman might be treated in detention, other than the passenger at p. 228 of the appellant's bundle in the report from Mr Joffe of the Royal Institute of International Affairs.
- It was clear that the appellant had been required to shoot innocent people. The objective evidence supported this.
- The Special Adjudicator had failed to consider the risk faced by the appellant as a returning failed asylum seeker.
- In his submissions Mr Wilkie said that the appellant must always have known he was at risk of having to fire on suspects. The police in Algeria had been armed throughout the period he served.
- In reply to our question in relation to desertion Mr Wilkie submitted there was no evidence that the appellant would, if he returned, be forced to perform further service in the police force or any of the armed services. In the circumstances the question of whether he had a genuine conscientious objection to military or police service was irrelevant. It was clear that his reason for leaving the police was that he was afraid of being killed. He was not a genuine conscientious objector.
- The police were not specifically targeted by the GIA. They could target anyone in authority. The authorities were able to offer a sufficiency of protection. In any event there was no reason why the GIA would identify him as a former policeman. His passport described him as a plumber. This appeared to have been a common practice. No doubt he could pass himself off as a plumber. He had left the police in November 1996, remained in the same town, and only arrived in the UK in January 1997. This was a substantial period during which, even if he was in hiding, he escaped trouble.
- Whilst the authorities might identify him as a former policeman there was insufficient country information to show that what would happen to him would amount to persecution.
- In her reply Miss Bayati submitted that the respondent had not challenged the findings of the Special Adjudicator. They had conceded that the police were amongst those groups targeted by the GIA. It was clear that the authorities could not give protection against the GIA.
- In relation to possible persecution by the GIA the Special Adjudicator concluded that if the appellant were to return to Algeria he would be at risk from the GIA if he was identified as a former policeman. We agree with this conclusion and that the evidence shows that members of the police and the security forces in general are at risk from the terrorists. This is the view of the United Nations High Commissioner for Refugees in his letter dated 19th January 1998, in the last paragraph on page 117 of the appellant's bundle.
- The UNHCR report dated 30th April 1998 starting at p. 151 of the appellant's bundle states that members of the security forces are amongst the categories of people who may be regarded as potential targets for persecution by radical Islamic groups. The UNHCR report dated 19th January 1998 says that deserters from the security forces are equally at risk from armed Islamic groups as serving members since they are perceived as a (former) perpetrators of actions against those armed groups. Draft evaders, however, will not normally be perceived as such.
- Where we part company from the Special Adjudicator is his conclusion that action by the GIA against the appellant would not constitute persecution for a Convention reason, but, as he described it, the inevitable risk of being involved on the side of the security forces in a long-running counter-insurgency operation against terrorists. The country information makes it clear that if the GIA identify the appellant as a former policeman they are likely to kill him. There can be no doubt that this would be persecution. It would be persecution for a Convention reason if it was a consequence of the appellant's actual or perceived political opinions or his membership of a particular social group and the authorities did not provide him with effective protection.
- Mr Wilkie did not refer us to any country information in relation to the risk from armed Islamic groups. The country information shows that the authorities are often unable to offer effective protection to serving members of the police force on their own in public or in their own homes. It is likely that, as he stated, the appellant remained in the police station or barracks and went home only rarely for this reason. If the authorities are not able to provide protection for serving members of the police it is even less likely that they are able to provide this for an ex member of the police force, particularly a deserter.
- We find that the authorities will not provide the appellant with effective protection. As he is a deserter from the police force they will not have the inclination to protect him.
- No submissions were made that the situation in Algeria had improved since the dates of the reports to which our attention was directed. The arguments that the appellant would not now be at risk from armed Islamic groups are that he would not be recognised as an ex policeman, to some extent demonstrated by the period during which he was able to remain in his home town before leaving the country, and the lapse of time since he was a policeman. The appellant claimed to have been in hiding during the period between leaving the police force and leaving the country. We find there to be a real risk that somebody like the appellant, who served in the police for a number of years, would at some stage be recognised as an ex policeman, particularly in the area in which he lived and worked. The lapse of time may reduce but will not remove the risk. If he is identified as an ex policeman by an armed Islamic group he is likely to be killed. The risks facing him are significantly greater than those facing the population at large.
- The question of whether the appellant is a deserter is relevant in considering the way in which he is likely to be treated by the authorities. However, questions of objection to future military or police service do not arise in circumstances where the appellant has not claimed and nobody has suggested he is likely to be forced or even asked to perform further military or police service.
- Miss Bayati submitted that page 228 of the appellant's bundle, part of the report from Mr Joffe of the Royal Institute of International Affairs, was the strongest country evidence she had able to find in support of the proposition that a policeman who was also a deserter would face persecution on return to Algeria. This part of the report reads "My final concern in respect of the categories excluded for a priori consideration for political asylum are draft evaders and deserters. The documents states (in section 3.1.5) that the UNHCR is unaware of any cases where this has resulted in discriminatory punishment. On the face of it that may be the case; however, it masks a very important reality. Many Algerians find it impossible, on moral grounds, to engage in domestic security duties if these might require them to open fire on fellow citizens. This is particularly acute if the individual concerned is a pious Muslim for it is actually a sin to do so. In the eyes of the authorities, therefore, such persons are FIS sympathisers and are described as such - they are not, in short, treated as mere draft evaders or deserters but as FIS members or sympathisers. It should also be born in mind that many such persons may refuse to discharge their military duties, not because of their moral objections but because of fear. They may have been personally threatened - members of the security forces on leave, for example, are routinely killed by all opposition groups - or their families may have been threatened. They are thus placed in an impossible position because the authorities will not provide them or their families with special protection in such circumstances. It should also be born in mind that draft evaders or deserters may be forced to carry out particularly hazardous duties - surely a practice which is harsh, discriminatory and inhumane."
- We agree with the Special Adjudicator's conclusions that if the appellant is returned to Algeria he is likely to be identified as a deserter from the police force, face prosecution in a military court, conviction and sentence. Whilst there is some evidence that those suspected of connection with terrorism or subversion have been held incommunicado, tortured, and "disappeared", the only report that indicates this sort of treatments might be meted out to policeman who have become deserters, is Mr Joffe's opinion that they may be perceived as FIS members or sympathisers. However, the appellant did not claim to be the sort of pious Muslim who objected to aspects of police service on the religious grounds described by Mr Joffe. In the circumstances, we agree with the Special Adjudicators conclusions that the appellant is not likely to be perceived as having political opinions hostile to the authorities, and is not likely to face disproportionate punishment.
- We find that the appellant, as a former policeman, does face a real risk of persecution by armed Islamic groups if he returns to Algeria. This would be a well-founded fear of persecution for a Convention reason.
For these reasons we allow this appeal.
P R MOULDEN CHAIRMAN
Copyright Policy |
Donate to BAILII