Berber Algerian student activist succeeds in petition against decision to refuse asylum appeal

About this case:

• Citation:
  [2023] CSOH 23
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Richardson

Petitioner AK, who had taken part in a number of demonstrations while a university student in Algeria, argued that the FtT had made material errors of law that the Upper Tribunal ought to have concluded could form the basis for an appeal. No representations had been made by the Secretary of State for the Home Department at the hearing before the FtT.

The petition was heard by Lord Richardson in the Outer House of the Court of Session. Winter, advocate, appeared for the petitioner and Crabb, advocate, for the respondent.

Arguable error

The petitioner entered the UK on a valid visitor’s visa and subsequently claimed asylum on the basis of being at real risk of persecution because of his Berber ethnicity and political activism while a student. Officials acting on behalf of the respondent accepted that he was Berber and had been a member of political groups at university, but did not accept that he had come to the adverse attention of the Algerian authorities.

Among the reasons for which the respondent disputed the petitioner’s position was that he had left Algeria on his own passport and visa. She inferred from this that there was no risk to the petitioner from the Algerian authorities on his return. The judge noted further that the respondent considered the claim that the petitioner’s father had bribed a member of airport staff to ensure he could leave Algeria to be unsubstantiated.

At the hearing against the respondent’s dismissal of his application before the First-tier Tribunal, the petitioner produced an expert report prepared by Dr Hasan Hafidh, a visiting research fellow at King’s College, London. However, the Tribunal, noting the lack of documentation relating to the petitioner’s claimed encounters with the police, refused the appeal. It also concluded that he had not made a genuine effort to substantiate his claim on matters of central importance.

It was concluded by the Upper Tribunal that the petitioner’s grounds of appeal, namely that the FtT had not taken account of the expert report and placed too much weight on the lack of documentation of proceedings against him, did not fairly represent the reasoning of the FtT’s decision. Counsel submitted that the arguable error of law in the FtT’s treatment of Dr Hafidh’s report was material, and that the FtT had failed to take into account the Home Office’s Country Policy, which gave no indication that the Algerian authorities sought to serve papers on individuals outside of Algeria.

Specifically addressed

In his decision, Lord Richardson began by observing: “It is apparent from the Decision of the First-tier Tribunal that the primary reason why the First-tier judge did not consider that the petitioner had made out his claim to have a well-founded fear of persecution on return to Algeria was the judge’s view that the petitioner ‘had failed to make a genuine effort to substantiate his claim on a matter of central importance, namely how he was able to leave Algeria if sought by the authorities and warned not to leave’. It is notable that the First-tier judge placed particular emphasis on the apparent failure by the petitioner to substantiate his claim.”

He continued: “It is striking that the First-tier judge adopted this approach without having referred to the evidence of Dr Hafidh on this very issue. As Mr Winter stressed in his submissions, Dr Hafidh specifically addresses the petitioner’s claims in relation to his departure from Algeria [in] his report. In that part of his report, in addressing the ‘plausibility’ of the petitioner’s claims about leaving Algeria, Dr Hafidh cited evidence relating to corruption at the airport concerned, Algiers, only a matter of months before the petitioner’s departure.”

On whether this was a material error sufficient to justify an appeal, Lord Richardson said: “The beginning and, indeed end, of this argument is a recognition that the First-tier judge considered that this issue was one of ‘central importance’ and provided the primary reason for dismissing the petitioner’s appeal. In the circumstances of this case, I accept Mr Winter’s submission that it was arguable that the appropriate level of scrutiny had not been applied to the petitioner’s case.”

However, addressing the second ground of appeal, he concluded: “I note that none of the information before the First-tier Tribunal assists with the question of whether papers are served on those who have left Algeria. I do not consider that the petitioner’s disagreement alone provides an arguable basis for setting aside the decision of the First-tier Tribunal on this issue. Accordingly, I do not consider, in respect to the second ground, that there was any error of law by the Upper Tribunal in refusing permission to appeal.”

The appeal was therefore allowed on the first ground, with the decision of the Upper Tribunal reduced.