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TT Algeria  UKIAT 08034
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 17 February 2003
Date Determination notified: 2 April 2003
Professor D C Jackson (Chairman)
Mr MG Taylor CBE
DETERMINATION AND REASONS
|Secretary of State for the Home Department
- The appellant, a citizen of Algeria, appeals against the decision of an Adjudicator (Mr Paul Chambers) dismissing an appeal against removal directions as an illegal entrant following the refusal of his asylum claim. The appellant also claimed that removal would be contrary to his human rights. Before us the appellant was represented by Miss G Oliso of the Refugee Legal Centre and the Secretary of State by Ms D Prentice.
The Appellant's Case
- The appellant is a Berber. He says that he is against the Berbers who want to have a separate state but hates the way the government treats the Berbers. There is discrimination against them. The appellant started working as a teacher in 1991 and was employed at Ibnel-haitem School in 1999. He had no problems with the military until June 2001. Around April of that year a student was killed in detention and after discussions between the teachers five of them, who were Berbers (including the appellant) decided to strike in solidarity with the victims. The students who were attending classes which were continuing became unruly and the headmistress called the police.
- The appellant said that the strike was a legal strike but the leader was arrested, charged with inciting a riot and detained. The appellant did not know what had happened to the leader but that there was no riot and the leader had not tried to start one. The four remaining teachers continued the strike until the end of the school year in mid-July.
- A few days after the end of the school year in answer to a letter the appellant attended the police station. He was there told that a charge of inciting riots had been brought, he was not allowed to consult a legal adviser or telephone his family and was detained for three days. During this time he was detained in a cell with fifteen others with primitive sanitary arrangements and relying on the other prisoners for food and water.
- After the three days in detention the appellant was asked if he agreed with the charge but he did not. He then signed a document which he did not read because he was exhausted. He was taken before a State Prosecution Officer who accused him of wanting a separate state. From there he was taken before a Juge d'Instruction, signed further sheets and was detained for a further twenty three days in as he put it "horrific" conditions. There were twenty people in a cell and they were abused by the police officers at random. On 13 August he was taken to Court and he was asked about being a member of the Separatist Movement and also about the strike at the school the latter being called "law and order disturbances". He was not allowed to talk in relation to either charge. He was convicted and given an eighteen month suspended sentence. He did not know for which of the two charges he received his sentence.
- The appellant appealed. Prior to the appeal the appellant was sacked from his job and went to the headmistress and called her a liar because of false accusations made against him. On 19 September the Appeal Court upheld the decision. Despite the appellant asking his colleagues not to strike they did so for two weeks in support of him.
- On 27 October 2001 he was summoned to police headquarters and again charged with inciting riots – this time in relation to his colleagues going on strike. He was also accused of verbally insulting the headmistress. On this occasion he was questioned for sixteen days at police headquarters and then taken to Court where he was represented and was released on bail.
- The hearing date for the new charge was 10 September 2001 but as his legal representative was out of the country her secretary said that she would apply for a new hearing date. He was told that he would not have to attend the Court. However, when he went to the secretary the day after the hearing he was told by her that the Court had refused to set a new date and had issued a judgment that he would have to serve the original eighteen month sentence and pay a fine of 10,000 Dinars.
- On the return of his legal representative she said that she would lodge an appeal but in the meantime he would have to go to prison to serve his sentence or be classed as a fugitive. He had been told by other prisoners that an appeal would only happen six months into his sentence.
- On receiving the news from the secretary he said he knew he had to leave the country as he could not face going back to prison. He went to stay with his sisters and tried to arrange his departure.
- At the beginning of January 2002 the police called at his parents' house and said that he was classed as a fugitive and should present himself to them. His mother told the police that he had left the country. On 7 February he travelled to Algiers and then to Calais and from Calais to the United Kingdom. He arrived in the United Kingdom on 10 February 2001 and on 11 February he claimed asylum.
The Adjudicator's Approach
- The Adjudicator summarised the appellant's evidence and also the objective evidence in relation to the circumstances in Algeria and in particular the treatment of Berbers. He commented that the Berbers were a majority ethnic minority and were not as such persecuted.
- The objective evidence supported the appellant's statements in relation to the demonstrations following the death of a young man in police custody in April 2001. An independent report issued after the demonstrations held the Gendarmerie mainly responsible for the violence which occurred and the government said that they are ready to take steps to meet Berber concerns more fully. There had been a general strike in the area from which the appellant originates (Kabilye) there had been clashes between police and Berber activists and further arrests in April.
- The Adjudicator accepted the appellant's evidence in relation to his own history. However, said the Adjudicator, he did not fall within the group of those set out in the objective evidence who were ill-treated and violated by excessive actions by police officers. The appellant's complaint was that the process of prosecution itself amounted to persecution.
- In relation to the strike action taken by the appellant the Adjudicator commented that it had to be remembered that he had obligations within his contract of employment to his employers and pupils. Somewhat contrary to the general findings of credibility the Adjudicator did not accept that the appellant did not know for which offence he was convicted and sentenced. Further, it was not possible to say whether the appellant's dismissal from employment was lawful but the issue was at least raised by the appellant's actions. At the appeal the appellant was represented and there was no indication as to which representations were made.
- As regards the charges made in October 2001 the appellant had taken legal advice but his legal representative did not appear at the police station and seemed thereby to have been in default of her professional obligations. Further, it would seem that the failure to make the Court hearing date suggested negligence on the part of his lawyers but there was no suggestion that the Court had erred in principle. The view that the earlier suspended sentence had been infringed by the later offences was one which would follow in many jurisdictions. By his actions in leaving the country the appellant had deprived himself of the opportunity of a hearing on appeal in Algeria.
- The Adjudicator found there was a sufficient system of protection within the legal system and that the evidence did not establish a flagrant denial of a fair trial. The delay in the appeal being heard while the appellant was serving his sentence would not give rise to persecution. It followed that the appellant had not shown a fear of persecution for a Convention reason. Similarly, he had not shown that there would be any breach of Article 3 of the European Convention of Human Rights from any likely treatment.
The Proceedings before the Tribunal
- The grounds of appeal asserted that the Adjudicator appeared to dispute some of the appellant's claims despite believing the appellant's evidence. So the Adjudicator had commented that although the appellant was represented on appeal in Algeria there was no evidence from his representatives confirming the matters complained of. Secondly, the Adjudicator erred in suggesting that the appellant was not persecuted or got into difficulties because he was a Berber. Thirdly although the Adjudicator referred to state sufficiency of protection that issue did not arise as the persecution or ill-treatment asserted was on behalf of the state. Finally it was said that the Adjudicator failed to consider or take into account the appellant's claim that the charges against him were "trumped up" in order to persecute him.
- The assertion that the Adjudicator went against his own finding of credibility when commenting there was no confirmation by the representative of the circumstances of the appellant's appeal has no weight, given that immediately after that comment by the Adjudicator he said that he approached the matter on the basis of the appellant's account. Miss Oliso agreed that this was not her strongest point.
- On the other hand the Adjudicator's comment that he did not believe the appellant did not know for which charge he was sentenced is contrary to the acceptance of the appellant's evidence. On this Ms Prentice suggested that the Adjudicator's determination was too uncertain for the Tribunal to do anything but remit. However, she did agree that whether or not the appellant knew of that conviction is hardly material to the central issues in the case and would not of itself prevent the Tribunal deciding the matter on the basis of the Adjudicator's credibility findings in relation to the evidence as a whole.
- In holding the appellant had not got into difficulties because he was a Berber the Adjudicator seems not to have appreciated the connection in the appellant's evidence between the attitude taken by the State Prosecution Authority to the original charge and his Berber ancestry. As said in the grounds of appeal the State Prosecutor accused the appellant of wanting a separate state. Further, the Adjudicator seems to have paid little attention to the centrepiece of the appellant's story that the charges of inciting riots have themselves no foundation in fact and were made in the context by reference to a separatist design.
- As to the sufficiency of protection, the assertion is that it is members of the police and the prosecuting authority which instigated the charges against the appellant and abused him. If there was a system in place which would provide adequate remedies for such acts then it is highly arguable there will be no case either under the Refugee Convention or Human Rights Convention. So the question is whether the system would be adequate for preventing abuse by those operating it.
- The Adjudicator emphasised that part of the appellant's problems stemmed from the failure of his representatives to do all that should have been done and indeed in giving him the advice they did about the original Court hearing. That may be true but the essence of this appellant's case is the bringing of the charges of inciting a riot when on the appellant's evidence, as accepted, there was not the slightest foundation for the charge. Further, on the evidence accepted the charge was overtly linked to the comment that the appellant wanted a separate state and it is difficult to escape the conclusion that the matter would not have been handled the way it was save that the appellant was a Berber.
- The considerable doubts that are caused by the state actions in relation to the first charge are increased by bringing a further charge of inciting a riot and again on the appellant's evidence there was not the slightest foundation for it. These events must be placed in the general context of demonstrations connected with the rights of Berbers and the violent methods employed by the state in dealing with them.
- In the light of the circumstances which we have outlined Miss Prentice conceded that the appellant had made his case. We agree and allow the appeal.
D C Jackson
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