The High Court has quashed a decision refusing international protection to an Algerian applicant, finding that the appeals tribunal failed to apply a statutory presumption arising from past persecution or serious harm. The case must be reconsidered by a different tribunal member.
Mr Justice Cian Ferriter ruled that the tribunal had, in substance, accepted that the applicant was violently attacked for expressing political views as a Berber separatist activist, and that the state did not provide adequate protection for activists in those circumstances. Section 28(6) of the International Protection Act 2015 therefore applied.
That section treats past persecution, serious harm or direct threats as a serious indication of future risk, unless there are good reasons to consider that the harm will not be repeated. The judge found that the tribunal’s decision did not address the essential elements of that presumption: the accepted past harm, the resulting presumption, or the reasons for finding that harm would not recur. The tribunal had instead assessed future risk using the ordinary test that placed the burden on the applicant. The judge held that this was an error of law.
The ruling does not determine whether the presumption can be rebutted or whether the applicant should receive refugee status. Those questions are for the new tribunal on remittal.
The applicant had argued that the tribunal also failed to consider supplementary country-of-origin material submitted at his appeal hearing. The judge found that the tribunal’s document list did not include that material, but concluded that the supplementary material was consistent with country information the tribunal had considered and accepted. He said he would not have quashed the decision on this ground alone.
The applicant also argued that the tribunal had wrongly assumed he would avoid future persecution by keeping his political views private. The judge said the principles in the UK Supreme Court’s decision in HJ (Iran), though developed in a case about sexual orientation, can apply in principle to political opinion. Because that issue had not been argued before the tribunal and the applicant had not expressly said he wished to resume activism, the judge did not decide whether the tribunal erred on the facts. He said the new tribunal should consider the HJ (Iran) approach and, if it finds the applicant would not engage in activism, examine why.
The applicant had been a member of the Berber separatist MAK movement and was attacked during university protests in 2008. He left the movement in 2009, saying he feared for his life. The tribunal had accepted those attacks but rejected other claims, including that Algerian authorities continued to threaten or target him after he stopped political activity. Those credibility findings were not challenged in the judicial review.