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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Amara, re Judicial Review, Petition for [2002] ScotCS 10 (11th January, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/10.html Cite as: [2002] ScotCS 10 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD NIMMO SMITH in the petition of SAID AMARA Petitioner; for Judicial Review of (i) a decision to deport the petitioner made on 23 October 1997, (ii) a determination dated 26 February and promulgated 3 March, both 1998, of a Special Adjudicator, and (iii) a determination of the Immigration Appeal Tribunal dated 17 March 1998
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Petitioner: Sutherland; Lindsays, W.S.
Respondent: Lindsay; Solicitor to the Advocate General
11 January 2002
"364 In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. Deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority. Before a decision to deport is reached the Secretary of State will take into account all relevant factors known to him including:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment
record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which
the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person's behalf."
"The requirement that a person must be outside his country to be a refugee does not mean that he must necessarily have left that country illegally, or even that he must have left it on account of well-founded fear. He may have decided to ask for recognition of his refugee status after having already been abroad for some time. A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee 'sur place'."
Paragraph 95 states, in part: "A person becomes a refugee 'sur place' due to circumstances arising in his country of origin during his absence."
"With regard to persons claiming persecution by non-State agents, an essential criterion against which to assess the need for international protection is the absence of effective national protection against persecution, ie. in a situation whereby the Government is either unable or unwilling to ensure effective protection to those targeted by non-Government entities. In the context of Algeria, it is UNHCR's view that asylum-seekers who credibly claim fear for their life or basic freedoms by militant Islamic groups should normally qualify for refugee status."
"1. You have applied for asylum in the United Kingdom on the grounds that you have a well-founded fear of persecution in Algeria for reasons of race, religion, nationality, membership of a particular social group or political opinion.
2. The basis of your claim for asylum in the United Kingdom is that you fear persecution from persons unknown who have threatened to kill you.
3. In reaching his decision, the Secretary of State took account of your previous immigration history. He observed that when interviewed on 19 June 1997 you stated that you had last left Algeria in 'May 1993, actually 1994' and that you had travelled to Tunisia where you remained for eight months, during which time you had travelled to Turkey where you remained for one month. You also stated that you had travelled directly to the United Kingdom from Tunisia, and that you had arrived during February 1996. However, the Secretary of State observed from your passport that you had left Algeria on 21 May 1995 and that you had travelled to Turkey, where you arrived on 22 May 1995. That you remained in Turkey until 21 June 1995 when you travelled to Tunisia, and that you remained there until 30 June 1995. That you arrived in Algeria on 30 June 1995 and remained there until 7 July 1995 when you again travelled to Tunisia, and that on 1 October 1995 you left Tunisia and travelled to Libya where you remained for one day before returning to Tunisia on 2 October 1995. That you then remained in Tunisia until the 4 December 1995, when you returned to Algeria for one day before returning to Tunisia on 5 December 1995, and that you subsequently remained in Tunisia until your departure for the United Kingdom on 1 February 1996. The Secretary of State noted the discrepancies between the account of your movements you gave at interview on 19 June 1997 and the endorsements in your passport. Consequently, he concluded that these discrepancies cast serious doubt upon both the credibility and veracity of your claim. Moreover, the Secretary of State noted that you had claimed asylum in the United Kingdom only after you had remained without authority and faced possible removal from the United Kingdom. The Secretary of State would expect someone who had a genuine fear for their life in their country of origin to seek refuge at the first opportunity in the first safe country in which they arrived. The Secretary of State considered, therefore, that your delay in claiming asylum could not be viewed as the action of a genuine refugee. Consequently, he treated the claims made in support of your application with scepticism.
4. Furthermore, the Secretary of State observed that you applied for asylum on 20 May 1997, which was over fifteen months after your arrival in the United Kingdom on 1 February 1996 and over three months after the incident in which you alleged that your brother was killed during January 1997, which led to your claimed fear of returning to Algeria. The Secretary of State was of the opinion that someone who had left their country of origin and who subsequently had cause to fear for their life or liberty in their country of origin would have applied for asylum immediately, or failing that soon afterwards. Even accepting that you may not have known how to go about applying for asylum when you believed that you had cause to fear returning to Algeria, the Secretary of State would have expected you to have made urgent enquiries regarding the procedures for making an asylum application and then to have applied promptly afterwards. Your failure to do so led the Secretary of State to further doubt the credibility and veracity of your claim.
5. Moreover, the Secretary of State noted that at interview on 19 June 1997 you stated that you had been unemployed prior to your departure from Algerian and that you were unmarried. You had very limited incentives to remain in Algeria and taken with the degree of choice that you have exercised in selecting the United Kingdom as your country of refuge, the Secretary of State was not satisfied that these were not factors which pointed to a motivation other than your claimed fear of persecution in Algeria behind your present trip to the United Kingdom.
6. You stated that you undertook military service for a period of two years in 1992 and that after you had completed your military service some unknown people started to look for you. You stated that when these people could not find you at home they took your brother instead and that they then killed him. You later stated at interview on 19 June 1997 that when your brother was taken away your family were threatened. You have stated that you had been informed of this by your father who had contacted you, and you added that these people had told your father that they wanted to kill you. You also stated that your father had not reported this incident to the authorities, that he may not have done so because he feared reprisals, and you added that your father was afraid as there was violence, trouble in Algeria. You have also stated that the Algerian authorities would have been able to protect you but that you could not feel safe as it was likely that you would be killed. You also stated that there is no security in Algeria, that your brother's death and your family having been threatened proved this, and you added that killings occurred on a daily basis in Algeria.
7. However, the Secretary of State noted that at interview on 19 June 1997 you also stated that the incident in which your brother was killed occurred during January 1997 and that this was the only occasion on which people had been to look for you or threatened your family. The Secretary of State also noted that this alleged incident occurred over one year after you last left Algeria and almost three years after you had completed your military service. Consequently, the Secretary of State considered that these contradictions cast further doubt upon both the credibility and veracity of your claim. Moreover, the Secretary of State observed that you stated that your father had informed you of this incident and that the people who had allegedly shot your brother had informed him that they wanted to kill you, but that they had not informed him as to why they wished to do so. He also observed that you had not adduced any evidence to suggest why you would have been of interest, politically or otherwise, to these 'unknown persons'. The Secretary of State therefore considered that these factors cast considerable doubt upon the accuracy of all the information provided in support of your asylum application and he further considered that you may have fabricated at least part of your account in an attempt to embellish your application.
8. Nevertheless, the Secretary of State has considered all the evidence adduced in support of your claim, taking into account the political situation in Algeria which he accepted had deteriorated following the postponement of the second round of the national elections in 1991 and the imposition of a State of Emergency in early 1992. He understood that following this, there had been a considerable amount of terrorist activity resulting in the deaths of large numbers of Algerian and foreign citizens. However, he was not of the view that the deterioration of the general situation in Algeria would, in itself, give you a claim to refugee status within the terms of the 1951 United Nations' Convention. Furthermore, the Secretary of State was of the opinion that if your brother had indeed been killed and your family threatened, your father's first resort should have been to seek the protection of the Algerian authorities. Moreover, the Secretary of State concluded that had you indeed been threatened as you claimed then your first resort should have been to have sought the protection of the Algerian authorities rather than making a claim for asylum abroad.
9. The Secretary of State noted that you had departed from Algeria through the normal channels in possession of a valid passport, issued to you in your own true identity and that you had apparently encountered no difficulties in doing so. The Secretary of State concluded that as you had been able to travel freely, you were of no adverse interest to the Algerian authorities. Furthermore, the Secretary of State noted that you have never, in any country, attended rallies or demonstrations, and that you have never been involved in any political activity or experienced any harassment, persecution or detention at the hands of the Algerian authorities. Consequently, the Secretary of State did not believe that you had demonstrated that you were likely to be of adverse interest to the authorities were you to return to Algeria and that as such you would be able to avail yourself of the protection of the authorities if the need arose.
10. In the light of the evidence provided and for the reasons given above, the Secretary of State concluded that you do not qualify for asylum."
"As you have overstayed your permitted leave to remain and appear to have no intention of leaving this country voluntarily, the Secretary of State has decided to make a deportation order against you under section 3(5)(a) of the Immigration Act 1971. Deportation is normally the proper course where a person has remained in the United Kingdom without proper authority and no sufficient compassionate circumstances have been made known to the Secretary of State to cause him to depart from the normal course. The Secretary of State having taken all the factors before him in account including those set out in paragraph 364 of HC 395 has concluded that no sufficient compassionate or other compelling circumstances exist in your case."
"I have a well-founded fear of persecution for a Convention reason if returned to Algeria. I understand that owing to recent events in Algeria the Secretary of State has suspended the removal of Algerian asylum-seekers to Algeria. In these circumstances it would not be proper to remove me to Algeria."
"Where the respondent, as in this case, has pointed to alleged omissions by the appellant arising from his asylum interview, I see very little purpose in the appellant coming to the appeal hearing to say that he is under no obligation to rectify any such omissions."
Later on he said that he thought that it was regrettable that the petitioner had not availed himself of the opportunity of giving explanations in respect of matters alleged by the respondent to affect his credibility. The fact that the application was made by the petitioner as a refugee sur place, as a result of what he had been told by those he had left behind in Algeria, seemed to the special adjudicator to give added significance to any attempt by the petitioner to give as full an explanation as he was able of all the circumstances relating to the evaluation of his claim. Having made these remarks, the special adjudicator continued:
"In the refusal letter of 18 August 1997 the credibility of the appellant is impugned on a number of grounds. The respondent attacks the credibility of the appellant on the basis that he did not give a complete and accurate account of his movements between leaving Algeria and arriving in the United Kingdom. All that the appellant said when interviewed was that he had left Algeria in May 1993, which he then changed to 1994. In fact, as was shown by the appellant's passport, he left Algeria in May 1995 and spent some time in Turkey, Tunisia and Libya, before briefly returning to Algeria for one day in December 1995. The respondent commented on the discrepancies between the account given by the appellant at his interview and the endorsements in his passport.
On this one point Mr Singh made a submission of some significance. He pointed out that the appellant had voluntarily given his passport to the respondent. Had the appellant been seeking to conceal his movements, he would also have sought to conceal his passport. As it was, the appellant's travels prior to coming to the United Kingdom preceded the incident which gave rise to his claim for asylum. The appellant therefore did not regard his travels prior to coming to the United Kingdom as being of particular significance in relation to his asylum claim.
I consider Mr Singh's submission on this point to be well-founded. I do not think there was a serious possibility that the appellant was trying to mislead the respondent as to his whereabouts prior to coming to the United Kingdom, given that he gave the respondent his passport containing the endorsements which it did. The appellant said he left Algeria in May 1994, rather than in May 1995 as his passport revealed, but he said this at an interview some time afterwards in June 1997 and I consider there is a reasonable likelihood that the appellant made an accidental error.
The respondent also referred to the appellant's failure to claim asylum in the first safe country he came to. However, the appellant came to the United Kingdom in February 1996 for medical treatment, not, according to his own account, because of a fear of persecution. The event which he claims gave rise to his fear of persecution did not occur until January 1997. The appellant would therefore have had no reason for claiming asylum in any of the countries he travelled through prior to coming to the United Kingdom.
Of more potential significance is the respondent's observation that the appellant did not make his asylum claim until more that three months had elapsed since the alleged killing of his brother. Nevertheless, it is this killing which the appellant claims gave rise to his fear of persecution. Mr Singh's response to this point was simply to submit that at his asylum interview the appellant was not asked when he received news of his brother's death.
I have already indicated that I do not consider Mr Singh's submission on this point to be adequate. The question of the date on which the appellant received intimation of his brother's death is a significant omission in the appellant's account. In making his appeal, the appellant has had the opportunity to rectify this omission and, if necessary, to give an explanation as to why he delayed claiming asylum, if he did, even after he had heard of his brother's death. The appellant need not have given oral evidence to have rectified this omission.
On the other hand, it occurs to me that had the appellant been fabricating his account, it would have been easy enough for him to say when he made his asylum claim that he had just had news of his brother's death. There was no reason for him to say that this brother was killed in January if, in fact, he was not killed in January. The appellant's leave to remain expired on 31 March 1997. If the appellant had been planning to make a false asylum claim he might have been expected to do so before his existing leave expired. These are at least small points in the appellant's favour.
The respondent made the following further comment on the credibility of the appellant's account of the incident which gave rise to his asylum claim:
'However, the Secretary of State noted that at interview on 19 June 1997 you also stated that the incident in which your brother was killed occurred during January 1997 and that this was the only occasion on which people had been to look for you or threatened your family. The Secretary of State also noted that this alleged incident occurred over one year after you last left Algeria and almost three years after you had completed your military service. Consequently, the Secretary of State considered that these contradictions cast further doubt upon both the credibility and veracity of your claim.'
At his interview the appellant said he had no problems before he completed his military service. He said that after that some people started to look for him. He said that these were unknown people. He said that after they could not find him at home the took his brother and killed him instead.
The implication from this statement is the appellant was being sought by these unknown people because of his completion of military service. Nevertheless, the respondent rightly draws attention to a gap of over two years between the appellant completing his military service and the killing of his brother. The appellant was asked at interview if the occasion in January 1997 when his brother was killed was the only occasion on which people had been to look for him and he replied in the affirmative. He therefore acknowledged that no-one had been to his house to look for him in the period between completing his military service and the killing of his brother in January 1997. Although the appellant had earlier said that after he did his military service some people started to look for him, he does not give any evidence of being sought apart from the incident in January 1997.
The appellant's position, therefore, is that he claims he was being sought after he completed his military service but he has given no indication of why he would have thought he was being sought prior to January 1997. This is a further significant omission in his account, which he has made no attempt to explain. This omission affects the plausibility of the appellant's assertion that he was sought after he completed his military service.
Not only does the absence of evidence relating to anyone looking for the appellant between 1994 and January 1997 affect the appellant's credibility but, as the respondent points out, it also affects the issue of whether there is a causal connection between the appellant's military service and his alleged fear of persecution. The view of the respondent is, by implication, that the time elapsed between the appellant's military service and the killing of his brother was sufficiently long for the causal connection between his military service and his brother's death to be lost.
I have before me the UNCHR guidelines of 21 November 1997 relating to Algerian asylum seekers. These guidelines refer to the danger of militant Islamic groups to which members of the security forces are exposed. The guidelines refer to those performing service as members of the security forces, not specifically to former member of the security forces. While I do not assume from this that former members of the security forces would not be at risk, nevertheless a former member of the security forces would still have to establish that it was because of his previous service that he was at risk.
In my view the appellant has failed to establish that he was at risk of persecution because he had performed his military service. I have reached this decision partly because of the lapse of time between the appellant completing his military service some time in 1994 and his brother's death in January 1997. As submitted by the respondent, this lapse of time affects any attempt to establish a causal connection between the military service and the brother's death. It would be possible for the appellant to show that the causal connection was not lost because he was being sought throughout the period between 1994 and January 1997. However, as I have already indicated, I am not satisfied on the basis of the appellant's evidence that he was being sought between the completion of his military service and his brother's death. The appellant's claim that he was being sought during this period is not credible.
In her submission Mrs McCloy drew attention to the appellant's statement that his father had not reported his brother's killing to the authorities. She did not consider that his failure to report the killing, had it taken place, was credible.
In his account at interview the appellant explained that his father did not report the killing because of fear of reprisals. Given the documentary evidence before me as to the overall situation in Algeria, I consider the appellant's explanation of this point to be credible.
I have found some of the appellant's evidence to be credible and have rejected other parts. In particular, I accept that the appellant's brother was killed in Algeria in January 1997 by persons unknown. I accept also that the appellant has a fear for his own safety if he returns to Algeria following the death of his brother.
The appellant has failed to satisfy me, however, that he was being sought as an individual for any reason by the persons who murdered his brother. As I have already argued, the appellant has failed to establish that he was being sought because he had completed military service. As a result I am unable to make any finding as to the reason why the appellant's brother was killed, except to acknowledge that many thousands of innocent civilians have been killed for no apparent reason in the state of unrest in Algeria.
The respondent has suggested that the appellant was an economic migrant, principally because he was not employed in Algeria. I note, however, that the appellant could afford to travel before coming to this country and that he could afford to come here for medical treatment. These points do not seem to be consistent with the view of him being an economic migrant. It seems to me that the appellant is genuinely seeking to stay in this country because of his fear of the unrest in Algeria, albeit that he has been unable to establish any reason why he specifically should fear for his own safety.
The appellant, therefore, has failed to show that he falls into any of the categories of asylum seeker described in the UNHCR guidelines of 21 November 1997. He does not claim to fear persecution by the Algerian government as an actual or perceived member or sympathiser of the Islamic groups or parties. On the basis of the evidence before me, he has failed to establish that he is threatened by militant Islamic groups because of his real or alleged support for the government. The other two categories of asylum seeker described by the guidelines relate to gender and ethnic origin and are not relevant to the appellant.
As already stated, I have before me the determinations of the Tribunal of Yousfi and Lounadi. On the basis of my findings, the appellant falls into the same category as the appellant in Lounadi. He is an ordinary private citizen and is not a perceived target of the fundamentalists. In Lounadi, the Tribunal said of a person in the appellant's position:
'Although the appellant may consider that there is a reasonable likelihood that as a result of terrorist activities in Algeria, he might at some time in the future be injured or even killed, this is a fear which he shares with every innocent citizen of that country who is going about his legitimate business. We cannot be satisfied to the lower standard of proof that it can be demonstrated that the government is unable to offer effective protection for its ordinary citizens as opposed to targeted individual citizens.'
Mr Singh referred, in particular, to recent reports by Amnesty International which suggested that the authorities in Algeria were complicit in atrocities against their own population. I accept that there is in the documentary evidence a suspicion that this is so.
However, on the available evidence, consisting of recent Amnesty International Reports and newspaper cuttings, I do not consider that I would be justified in finding, even on the lower standard of proof, that the Algerian government is participating deliberately in the committing of atrocities against the civilian population. I accept that the Algerian authorities have been violating the human rights of individuals whom they perceived as opponents but the appellant has put forward no evidence to suggest that he would be perceived by the authorities as an opponent. It seems to me that something more than mere suspicion is required before I would be satisfied that there was a reasonable degree of likelihood that the Algerian government was deliberately massacring sections of the civilian population. At this stage on the basis of the evidence before me, such a proposition is only conjecture.
For the reasons set out above, the appellant has failed to satisfy me to the appropriate standard that he has a well-founded fear of persecution for a Convention reason were he to return to Algeria. I accept that he has a genuine fear for his safety as a result of the unrest in that country but he has failed to establish that this is anything more than the fear which he shares with every innocent citizen of that country who is going about his legitimate business. He has failed to show that he himself has been targeted either by the authorities or by any other agent of persecution."
The special adjudicator concluded his determination by holding that on the facts of the petitioner's case the respondent had power in law to make the deportation order for the reasons stated in the notice of the decision.
"The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it."
Reference may also appropriately be made to Singh v Secretary of State for the Home Department 2000 S.C. 219, in which Lord Weir, delivering the opinion of the Court, said at pp. 222H to 223A that the basic duty of statutory tribunals to give reasons would be satisfied if the reasons came within the ambit of what was said in Wordie Property Co Ltd. The extent and adequacy of the reasons which were set out were bound to vary according to circumstances. Much would depend on the nature of the tribunal and any rules under which it was required to work, the scope of the issues which might be raised, the amount of evidential material involved and whether the decision was an administrative or judicial one. The Court agreed with the view of Lord Penrose in Asif v Secretary of State for the Home Department 1999 SLT 890 at p. 894H, where he said:
"[N]othing could be more destructive of the efficient disposal of immigration appeals than the notion that the adjudicator and the tribunal are under an obligation to carry through a mechanical process of narration of the evidence, analysis of it into classes, and explanation factor by factor of the relevance, or irrelevance, credibility and reliability or otherwise of it."
"The special adjudicator's findings are perverse in the light of the favourable findings that he has made. The special adjudicator has found that the appellant 'has a fear for his own safety if he returns to Algeria following the death of his brother', it is submitted that his further findings that the appellant has no greater fear than any other 'ordinary citizen' contradicts his own finding that the appellant does have a specific fear for his own safety. It is submitted that the fact that the appellant's brother was killed (accepted by the special adjudicator) further endorses the appellant's claim to a fear of persecution."
"The Tribunal has considered the grounds submitted in support of the application, the documentary evidence, the record of proceedings and the adjudicator's determination. We consider that the reasoning of the special adjudicator addressed the issue raised in the grounds of appeal, and that the decision was based on the view that the applicant's fear was not based on any identifiable Convention reason.
The adjudicator did not receive oral evidence, but in terms of the determination, the special adjudicator appears to have considered all the evidence before him, properly directing himself as to the proper standard of proof. The adjudicator came to clear findings of fact, after giving to each element in the evidence the weight he considered appropriate.
The Tribunal considers that the conclusions of the adjudicator are fully supported by the evidence, bearing in mind his assessment of the oral evidence [sic]. There is no misdirection in law."
"You had very limited incentives to remain in Algeria and taken with the degree of choice that you have exercised in selecting the United Kingdom as your country of refuge, the Secretary of State was not satisfied that these were not factors which pointed to a motivation other than your claimed fear of persecution in Algeria behind your present trip to the United Kingdom."
The petitioner never claimed that he travelled to the United Kingdom because he feared persecution. He was given limited leave to enter the United Kingdom for medical treatment, and did indeed undergo medical treatment. (3) There is a sentence in paragraph 8 which reads:
"Moreover, the Secretary of State concluded that had you indeed been threatened as you claimed, then your first resort should have been to have sought the protection of the Algerian authorities rather than making a claim for asylum abroad".
Again, this is only intelligible if the writer was under the illusion that the petitioner claimed to have left Algeria because he feared persecution if he remained there. Clearly, the concession by counsel for the respondent was inevitable. I shall discuss in due course its implications for the disposal of the present application.
"was that when assessing future risk decision-makers may have to take into account a whole bundle of disparate pieces of evidence: (1) evidence they are certain about; (2) evidence they think is probably true; (3) evidence to which they are willing to attach some credence, even if they could not go so far as to say it is probably true; evidence to which they are not willing to attach any credence at all. The effect of Kaja is that the decision-maker is not bound to exclude category (3) evidence as he/she would be if deciding issues that arise in civil litigation."
Counsel submitted that the special adjudicator had failed to follow the proper approach. Counsel advanced a number of criticisms of the special adjudicator's determination, but concentrated on certain passages, and it is on these that I propose to comment. Counsel made two main points. The first was that the special adjudicator recognised that:
"The appellant was asked at interview if the occasion in January 1997 when his brother was killed was the only occasion on which people had been to look for him and he replied in the affirmative. He therefore acknowledged that no-one had been to his house to look for him in the period between completing his military service and the killing of his brother in January 1997."
The special adjudicator went on, however, to say:
"The appellant's position, therefore, is that he claims he was being sought after he completed his military service but he has given no indication of why he would have thought he was being sought prior to January 1997."
The implication of this latter passage is that the special adjudicator was under the impression that the petitioner claimed that he was being sought prior to January 1997, and this is made clear a few paragraphs later on when the special adjudicator stated: "The appellant's claim that he was being sought during this period [the period between 1994 and January 1997] is not credible." The second point was that the special adjudicator accepted that the petitioner's brother was killed in Algeria in January 1997, and that the petitioner had a fear for his own safety if he returned to Algeria following the death of his brother, but went on to say: "The appellant has failed to satisfy me, however, that he was being sought as an individual for any reason by the persons who murdered his brother." Counsel submitted that, in evaluating the material before him, the special adjudicator had failed to consider whether the people who killed the petitioner's brother were looking for the petitioner. The special adjudicator had accepted that unknown people came to the house, took his brother and murdered him, but, without giving any reason for doing so, he rejected the statement, in the same passage of the interview, that the unknown people were looking for the petitioner. The special adjudicator thus failed properly to adopt the correct approach to the evidence before him.
"[T]he Court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny."
The same approach was adopted in some of the subsequent cases referred to by counsel for the petitioner. It is the approach which I propose to adopt for present purposes.
"(1) Where in any case - (a) an adjudicator has dismissed an appeal, and there has been no further appeal to the Appeal Tribunal... the Secretary of State may at any time refer for consideration under this section any matter relating to any case which was not before the adjudicator... (2) Any reference under this section shall be to an adjudicator or to the Appeal Tribunal and the adjudicator or Tribunal shall consider the matter which is the subject of the reference and report to the Secretary of State the opinion of the adjudicator or Tribunal thereon."
"His scepticism is reinforced by the fact that Mr Amara left Algeria in December 1995 [the date of his last visit there] and yet photographs taken before he left remained undeveloped until last year. He also finds it difficult to believe that a family member would risk returning to a bombed house and be photographed there. The Secretary of State would also expect that had the family home been bombed a family member would inform Mr Amara about it rather than finding out through a chance happening such as a visit by a friend to Algeria."
The writer went on to state that the respondent had reconsidered the asylum claim on all the evidence available to him, including the further representations, but was not prepared to reverse his decision of 18 August 1997. He had also considered the petitioner's application for leave to remain outside the immigration rules, but he was not prepared to exercise his discretion in the petitioner's favour.
"The Secretary of State accepts that your letter of 9 June 1999 makes clear that it was only the photographs showing the bombed house which were developed in this country.
Having examined the photographs the Secretary of State cannot be satisfied that they show the same building. The bombed building appears to have been a plain featureless building with nothing particularly distinctive which would assist in identification. You have mentioned the tiles as a distinctive feature but the Secretary of State does not accept that, even applying a low standard of proof, this could be seen as identifying the two buildings shown as the same one.
As far as identification of your client's brother is concerned, the photographs are not clear enough to allow the Secretary of State to be satisfied that it is the same person in both photographs.
Finally, I have noted that your Minute stated that the photographs were obtained by prior arrangement between your client and a friend who was to visit Algeria as your client was aware that his house had been bombed. Your letter of 9 June 1999 however does not state that your client was aware his house had been bombed before his friend visited Algeria and had the photographs delivered to him."
"In my view it is necessary for the Home Secretary, when considering whether to use the power, to consider why the statutory route has failed. If it was simply because of an adverse decision following a full hearing, or if ... the applicant has taken a calculated risk in not attending his hearing, then probably nothing short of new and potentially decisive evidence reasonably capable of acceptance could be expected to prompt any further consideration of the claim."
