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United Kingdom Asylum and Immigration Tribunal
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Cite as:  UKAIT 23,  UKAIT 00023
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confirmed) Algeria CG  UKAIT 00023
Date of hearing: 5 February 2009
Date Determination notified: 30 June 2009
|Secretary of State for the Home Department||RESPONDENT|
i). An appellant who can establish that he has a history that suggests he may have connections to international terrorism is at real risk of being detained on arrival in Algeria, and investigated.
ii). It is reasonably likely that when the suspicion is of international terrorism such a returnee will be passed into the hands of the Department du Renséignement de la Securité ("DRS") for further interrogation.
iii) The historic evidence about the DRS's propensity to use torture as a means of interrogation, together with the continuing absence of any evidence of accountability or monitoring, strongly suggests that, in the absence of evidence to the contrary, the DRS still uses torture and other serious ill-treatment in its places of secret incommunicado detention.
iv) In the light of the further report from Dr Seddon, and of both Y, BB and U v Secretary of State for the Home Department  UKSIAC 32/2005, and PP v Secretary of State for the Home Department  UKSIAC 54/2006, the Tribunal sees no basis for doing other than confirming that HS (Terrorist suspect – risk) Algeria CG  UKAIT 00048 (heard before the SIAC Cases) was correct and that the risk categories set out therein do not require widening.
The Error of Law in the First Determination
"…there was before the Immigration Judge a discrete but important issue, as to whether the Appellant would be viewed as having links with international terrorists or would indeed be perceived as a terrorist, owing to the time that he spent out of Algeria in Pakistan, Saudi Arabia and the Yemen and as a consequence of the work that he undertook in those countries, and thus be at real risk on return to Algeria. As properly identified by the parties, there was an absence of findings by the Immigration Judge in relation to these matters. Thus and for like reason, I agreed that the determination disclosed a material error of law. "
20(i) The appellant qualified as a teacher in 1983 and left Algeria for the first time in September 1989, going to Pakistan for ten months. He returned to Algeria in 1990 and regularly spoke out against the government at the mosque. He visited France in December 1990 and in April/May 1991 for employment reasons. In 1991 he claimed to have heard via a cousin and a distant relative who was a gendarme that a potential case was being opened against him in common with others who had previously been in Pakistan. The Immigration Judge said he placed little weight on the appellant's assertions that the Secret Service had a dossier, or file, on him. The appellant had not claimed he was ever arrested, detained or tortured for any activity in Algeria or because he had lived abroad, particularly in Pakistan.
20(ii) When the appellant was out of Algeria it was for the purpose of employment and economic betterment. He left Algeria in 1991 for Saudi Arabia and then travelled to Yemen in September that year. He worked in Yemen as a teacher until 1993. In 1993 he travelled to Saudi Arabia where he married in Jeddah in 1993, his mother having arranged the marriage. The marriage was registered at the Algerian Embassy. He then went to Pakistan again until September 1993 and taught in refugee camps. That was followed by a teaching job in Yemen which he had until 1995.
20(iii) Having married, the appellant's wife returned to Algeria in 1994 with "her son". She remained there for two months. She had no problems on arrival but claims to have been interrogated when she was leaving again. The Immigration Judge did not accept she would have left her son behind, as she did, if she was aware that the authorities were interested in the appellant. The Immigration Judge did not accept that when the appellant went to the Algerian Embassy in Yemen in 1994 to renew his passport he was told that he was wanted, but does seem to have accepted that the passport renewal was refused.
20(iv) The appellant had never joined any political party in Algeria, and in particular not FIS.
20(v) The Immigration Judge did not accept the appellant's claimed reasons for his passport not being renewed in the Yemen noting that the appellant's wife's passport was renewed. He concluded that the Algerian authorities had no adverse interest in the appellant at that time.
20(vi) The Immigration Judge recorded that, when the appellant was in Sierra Leone, the fact he had altered his old passport was discovered. He was refused another visa for the country and had no alternative but to leave. He did not claim asylum in Sierra Leone. He decided to travel to London but was stopped, when in transit, in the Netherlands because the alterations to his passport were noticed. When he was refused permission to continue his journey, he claimed asylum. When his application was refused, his appeal was dismissed and it was made clear by the Netherland's authorities that he would be returned to Algeria or Sierra Leone he left, on 13 October 2003, to travel to the United Kingdom using false documents.
20(vii) The Immigration Judge said the appellant had been living outside Algeria for fourteen years at the time of the appeal. He found no evidence to substantiate a fear of persecution when he left. He noted that the appellant had produced a third explanation for his passport not being renewed in Yemen. He first said it was because some documents were missing; second because he was wanted, his third explanation was that it was because there was a Pakistan stamp in it. The Immigration Judge expressly said he did not believe that the appellant had been told he was wanted. He noted the appellant's claim that he would not be safe on returning to Algeria with a laissez passer.
20(viii) This sub-paragraph did not contain any findings of fact.
The Evidence before us
"I am writing to you as a witness for AF I knew him since 1993 and 1994 when I met him in Yemen. He worked there as a teacher in primary schools. I believe that AF will be at risk in Algeria if he moved there because he worked as a teacher for a relief organisation in Pakistan and I will be happy to attend the full hearing who (sic) will take place on Thursday 5 February 2009 as a witness."
Dr Seddon's First Report
Dr Seddon's Second and Third Reports
"The security forces in Algeria (and notably the DRS) continue, as a result to implement a strategy of counter insurgency with little regard for the law or for human rights. The risk of being subject to harassment and persecution by the security forces on suspicion of being in some way sympathetic to or involved with the armed Islamic groups is still very real. Those known to be, and those thought to be, associated with Islamist groups have in the past frequently and often indiscriminately been arrested, detained, tortured and in some cases subject to extrajudicial execution. An Amnesty International visit to Algeria from 6 to 25 May 2005 referred to torture being defined as a criminal offence and to a reduction in allegations of torture and ill-treatment by the police and gendarmerie. But the AI mission did receive a significant number of allegations of torture and ill-treatment by the DRS. Torture included beatings and the 'chiffon' treatment. The AI mission noted that such torture generally takes place in secret locations impossible for the detainee to locate. Torture is frequently not recorded by doctors examining detainees".
He went on in paragraph 5.5 to refer to Amnesty International's July 2006 report on torture by the Algerian military security, and a US State Department Report of 2006 which highlighted the activities of the Department du Renséignement de la Securité ("DRS") and the impunity under which it operates. Human Rights Watch described to a UN Human Rights Committee, in 2007, how the DRS operations were "almost untouchable"; and legal safeguards were all but routinely disregarded by the DRS, according to Amnesty. Dr Seddon then went on to make some observations about the Tribunal's determination in HS (Algeria) which quoted from the same background material and to which we will come separately in the course of considering the submissions.
Dr Seddon's Oral Evidence
"There were persistent reports of torture and ill-treatment of suspects detained by the authorities and accused of terrorism related activities and there were concerns over the fairness of trials and terrorism related and politically motivated cases."
Under the heading "Violations in Counter Terrorism" the report said that torture continued to be used with impunity, with persistent reports of torture and other ill-treatment of people in the custody of the DRS. He was also shown the 2008 report where the passage does not appear and was asked if things had improved. He said that he had brought the situation up-to-date, from paragraph 5.5 of his most recent report. He noted a reference, in the 2008 Amnesty Report, to secret detention centres continuing to be used. Asked whether the SIAC cases, Y, BB and U v Secretary of State for the Home Department  UKSIAC 32/2005 and PP v Secretary of State for the Home Department  UKSIAC 54/2006 (handed down on 2 November and 23 November respectively) made any difference to his views about the conclusions in HS Algeria, Dr Seddon said those were all cases where there were specific assurances by the Algerian Government, whereas the appellant would have none. He said whilst he was still sceptical that deportation with assurances and monitoring were the answer, undoubtedly those that did have the benefit of them were better off. He felt that those cases did not show any change to the risks to this appellant. Asked whether the DRS was under control, or whether it still acted with impunity, Dr Seddon said that the evidence appeared to be that it is still autonomous, that it has its own secret detention centres and that there is no external monitoring. He said Amnesty continues to express concern. There is a debate about whether the position of the DRS is intentional or unintentional within the structure of the Algerian authorities but, whichever, it is credible to say that it is autonomous.
"The first important feature of the background material is the very large decline in the level of violence of the last few years: the number of deaths is much reduced, and we infer that the same is also true of the number of acts of violence resulting in injuries short of death; terrorist activity is no longer experienced in urban areas but is confined to the rural or mountainous areas of a very large country; there have been no disappearances for two years, and we regard these politically motivated disappearances, on whichever side, as a signal of the level of terrorist activity and the ferocity of the response, and their cessation as a sign of the return of peace and stability. The incidents of torture and its severity is markedly declining, as is arbitrary arrest and detention. The response of the security forces is obviously affected by the level of the terrorist threat which it is dealing with thus, as Algeria emerges from a decade of civil war and insurgency, the reducing level of violence reduces the abuses committed by the security forces. The perceived justification for them on both sides diminishes. This is not a short term reduction. It is a settled direction for the evolution of Algerian politics which reflects war weariness, changes in the outlook of government, and a degree of military success against groups which have lost popular support through the atrocities which they committed." (Mr Blundell's emphasis)
At paragraph 276 there was reference to the evidence before the Commission as to the release of 2,025 people as a result of the Charter and Ordonnance provisions, a reference to 85 people who had surrendered themselves and "dozens" who had returned to Algeria, all at the beginning of 2006. Mr Blundell suggested that the Charter and Ordonnance (full particulars of which are in the Commission's judgment) had benefited the human rights situation generally in Algeria.
"The bleak conclusion which he draws that it is unsafe to return any person alleged to have been involved in Islamist extremist activities to Algeria – is belied by what has in fact occurred: the release of the 2,500 detainees, including persons convicted of terrorist offences committed within Algeria, under the Charter and Ordonnance; the return, on 17 September 2006 of Rabah Kebir, the head of the Executive Agency of FIS; and the return of "I" and "V" of which more later, on 16 and 17 June 2006; and at the intergovernmental level, the signature, on 11 July 2006 by the UK and Algeria of four Conventions, on extradition, judicial co-operation in civil and commercial matters, the circulation and readmission of persons and mutual legal assistance in criminal matters; and President Bouteflika's acknowledgement and assurance of the Algerian Government's approval of the contents of the Prime Minister's letter of the same date. His letter contained the following statement:
'This exchange of letters underscores the absolute commitment of our two governments to human rights and fundamental freedoms …'
By longstanding Diplomatic Convention, President Bouteflika's acknowledgement and approval of a letter containing those words, amounts to a commitment on the part of the Algerian Government to respect those rights."
"In fact, it has not been suggested on behalf of G that the relevant parts of the open generic ATSCA judgment were or are wrong, and so we feel free to adopt them. It has not been suggested that the findings of fact in Y as to changes in Algerian society and the political situation in Algeria were mistaken, and again we shall adopt them, although we have of course borne in mind the differences between G's case and that of Y. The principal issue in BB was the same as that before us, namely the reliability of the assurances that have been given to the UK Government by the Algerian Government in relation to G and persons in a similar position whom the Home Secretary wishes to return to Algeria. It is of persuasive authority, but we have formed our own view on that issue".
[It is of course the case that this appellant would be returned without any assurances]
It is apparent from both that paragraph, and paragraph 23, that the findings in Y were taken as the starting point in G when it came to studying the objective material. Paragraph 23 of G contained a number of references to paragraphs in Y which Mr Blundell also relied upon.
"According to an Amnesty International Report of July 2006, which was not disputed, torture and other ill-treatment continued to be used systematically by the 'military security' (i.e. the DRS). See too the UNHCR position of December 2004".
Mr Blundell said it was his case that the reference to torture and ill-treatment was no longer an appropriate observation. He observed that that reference in G was built on the Amnesty International Report of 2006 and the UNHCR position paper in 2004. As to the latter, Dr Seddon accepted in evidence that a "lot of water had gone under the bridge since then". Mr Blundell anticipated that Ms Fielden would rely on paragraph 26(d) of G in which it was said to be common ground that Algerian citizens suspected of terrorism who are returned to Algeria would, in the absence of assurances be at real risk of torture and other ill-treatment. He argued that this case was not similar to that of G and that the appellant would not be at risk of torture if returned without an assurance. He reminded us that the personal circumstances of G are to be found at paragraphs 11 to 17 of the Commission's judgment. He referred in particular to paragraph 14 where it was said, "The closed material confirms our view that there is indeed reasonable suspicion that [G] is an international terrorist within the meaning of Section 21 of the ATCSA …".
"Algeria is making a sincere, broadly supported and generally successful attempt to transform itself from a war torn authoritarian state to a normally functioning civil society; solemn diplomatic assurances given by the Algerian State to the British Government about individual deportees are reliable and can safely be accepted".
He argued that this decision is an important one because it came after the Commission's earlier view had been tested by the return of a number of individuals. Those individuals are referred to in paragraph 14 of the judgment and include reference to "Q" who was returned without assurances. The Tribunal observed that although Q did not have the benefit of an assurance he was returned very much at the same time as the others. He went back to Algeria on 20 January 2007 and the others, with assurances, were K on 24 January, H on 26 January and P on 27 January. In relation to Q, it was said at paragraph 15 of U:
"He was detained by DRS Officers. On 26 January 2007 Amnesty International expressed publicly its concern that Q is at risk of torture."
There is reference in paragraph 17 of U reporting that Q had heard the screams of other people being tortured, but in paragraph 18 the Commission concluded that the statements from a former diplomat who had been involved in the deportation with assurances ("DWA") programme painted a different picture from the evidence which the appellant had sought to adduce. It concluded that Q, whilst in detention was well, but not happy about being detained, and that he had been treated with respect and not received any inhuman or degrading treatment. There is reference to the experience in detention of both V and U who reported that they had found their detention "very hard" but had not suggested they had been subjected to torture or ill-treatment. One of them had subsequently enquired about obtaining a new Algerian passport.
"The Algerian State has fulfilled to the letter those parts of its assurances to the British Government which can be conclusively verified…".
The Commission also said, at paragraph 37(iii):
"It is necessary to obtain such assurances in relation to an individual deportee for his safety on return to be reasonably assured".
Mr Blundell anticipated that Ms Fielden would rely on that and asked us to treat the assertion with a broad brush approach and look at it in the context of the SIAC cases.
"It cannot sensibly be claimed that there is a consistent pattern of gross and systematic violation of the rights which could be guaranteed by Article 3 if Algeria were a Convention State, of prisoners detained pending trial for offences, including terrorist offences".
He argued that this was in line with the current evidence and broadly supported by Dr Seddon's evidence.
"We much prefer and accept the view of Mr Layden that he has seen no evidence of lack of support by any element of the Algerian Executive, including the armed forces, for the reconciliation process."
It is perhaps important to note, as Ms Fielden was to say later, that at paragraph 7 the Commission said:-
"We accept that the Executive is the most powerful element within the Algerian Polity; that the armed services and the DRS are independent political actors like, for example, the military in Turkey".
Ms Fielden was to argue that, the way in which paragraph 7 is expressed, casts doubt as to whether the Commission was including the DRS as part of the armed services in paragraph 10. Mr Blundell referred to the Commission's conclusions, at paragraph 22, that the policy of peace and reconciliation and national consensus had been put under strain but had held. The Commission said the Algerian state had not responded in an authoritarian or lawless manner. Reported ill-treatment, by the DRS, of persons in their custody had not increased and that there had only been two instances that the Commission referred to. He argued that this passage bore out that the Algerian State was no longer adopting a policy of biting back and that, despite the fluctuations there, the state has not resorted to ill-treatment. In paragraph 28 of Y, BB and U there is reference to there being nothing in Y's circumstances which would increase the risk of torture or ill-treatment to the level at which that became a real risk. He acknowledged that there is reference to risk both in the Amnesty International 2008 Report, and by Dr Seddon, but he reminded us that it was for us to assess the risk. He argued that any risk was not a real risk.
"which detectives feared was being used to fund international terrorism".
That was not the case here and he argued that this appellant's relationship with doubtful organisations was a great deal longer ago than HS's possible involvement.
Ms Fielden's Submissions
Submissions on Late Documents
i). An appellant who can establish that he has a history that suggests he may have connections to international terrorism is at real risk of being detained on arrival in Algeria, and investigated
ii). It is reasonably likely that when the suspicion is of international terrorism such a returnee will be passed into the hands of the DRS for further interrogation.
iii) The historic evidence about the DRS's propensity to use torture as a means of interrogation, together with the continuing absence of any evidence of accountability or monitoring strongly suggests that, in the absence of evidence to the contrary, the DRS still uses torture and other serious ill-treatment in its places of secret incommunicado detention.
i) The appeal is allowed on asylum grounds.
ii) The appeal is allowed on Article 3 ECHR grounds.
Senior Immigration Judge Mather
|A substantial number of documents in bundles for hearings in 2005 and 2006 to which neither party referred||A substantial number of documents in bundles for hearings in 2005 and 2006 to which neither party referred|
|News Item (unspecified source) headed '26 Arabs refuse to go to their homelands'||12.4.??|
|Article in Le Soir d'Algerie on Anti Terrorist Law||3.10.92|
|News Item Asharq Al-Awsat Newspaper||10.1.94|
|Memo from the Commissioner of Afghan Refugees||16.4.94|
|UNHCR/Accord Algeria Country Report - Extracts||12.6.01|
|Amnesty International - report covering events January to December 2004||28.11.04|
|UNHCR Algeria Bulletin 1/2005||00.12.04|
|Algeria Watch web report 'Rights groups to guard against abuse'.||2005|
|Article New York Times "One Man and a Global Web of Violence||14.1.05|
|US Department of State Report on Human Rights Practices 2004||28.2.05|
|Amnesty International 'Possible secret detention/fear of torture'||7.3.05|
|Radio Netherlands 'Report on Algeria's 'disappeared' attacked'||5.4.05|
|Human Rights Watch article 'Algeria: Impunity Should Not Be Price Of Reconciliation'||3.9.05|
|Reuters Report 'Rebel Amnesty won't end Algeria strife'||11.9.05|
|HJT Research 'Six Killed In Latest Violence'||15.9.05|
|BBC News website 'Algerian Detainees 'face torture''||16.9.05|
|News Item from Khaleej Times online - Reconciliation or Obfuscation||25.9.05|
|Freedom House press release 'Algeria Amnesty Provides Neither Truth nor Justice||28.9.05|
|Radio Free Europe 'Algeria: Will Referendum On Amnesty End Civil War'||28.9.05|
|IPS News item 'Crimes get a dubious pardon'||1.10.05|
|HJT Research item||4.10.05|
|Expert Report by David Seddon||18.10.05|
|United Nations Third Periodic Reports of States Parties||16.1.06|
|Home Office Operational Guidance Note - Algeria||22.5.06|
|Expert Report by David Seddon||30.11.06|
|Amnesty International Report - Algeria||2007|
|Country of Origin Information Report - Algeria||2.11.07|
|Amnesty International Submission to the UN Universal Periodic Review||28.11.07|
|Amnesty International Report - Algeria||2008|
|US Department of State Report on Human Rights Practices 2007||11.3.08|
|Amnesty International Briefing to the Committee Against Torture||17.4.08|
|Country of Origin Information Report - Algeria||30.9.08|
|UNHCR Human Rights Council factsheet on the Universal Periodic Review||Nov 2008|
|Expert Report by David Seddon||3.2.09|