Smith (Ministry of Defence)

Before proceeding further with the narrative of events, I require to make reference to the main statutory provisions governing the petitioner's position. The primary statutory provisions were contained in the Immigration Act 1971 ("the 1971 Act") and the Asylum and Immigration Appeals Act 1993 ("the 1993 Act"). Some provisions of these Acts were repealed by the Immigration and Asylum Act 1999 ("the 1999 Act") with effect from 2 October 2000, except in relation to events which took place before that date, so for present purposes it is to the 1971 and 1993 Acts alone that reference requires to be made. The 1971 Act provides by section 1(2) that those not having the right of abode in the United Kingdom may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by the Act. Section 3(1) (as amended) provides inter alia that where a person is not a British citizen he shall not enter the United Kingdom unless given leave to do so in accordance with the Act, and that he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period. Section 3(3) provided inter alia , in the case of a limited leave to enter or remain in the United Kingdom, that a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration. Under section 3(5) (as amended, but prior to amendment by the 1999 Act), a person who was not a British citizen was liable to deportation from the United Kingdom if, inter alia , (a) having only a limited leave to enter or remain, he remained beyond the time limited by the leave. Section 5(1) provided inter alia that where a person was under section 3(5) liable to deportation, then the Secretary of State might make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom.

Section 3(2) of the 1971 Act provides inter alia that the Secretary of State shall from time to time lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of the Act for regulating the entry into and stay in the United Kingdom of persons required by the Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances. The relevant rules are contained in the Statement of Changes in Immigration Rules (HC 395) laid before Parliament on 23 May 1994, which came into effect on 1 October 1994. Part 13 thereof relates to deportation. Omitting reference to amendments subsequent to the decision-making process with which I am concerned, Rule 364 provides as follows:

"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 provisions of the 1971 Act require to be read in light of those of the 1993 Act. By section 1 the latter Act provides that the expression "claim for asylum" means a claim by a person that it would be contrary to the United Kingdom's obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to that Convention ("the Refugee Convention") for him to be removed from, or required to leave, the United Kingdom. Section 2 provides that nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Refugee Convention. By Article 1A(2) of the Refugee Convention the term "refugee" is defined as applying to inter alios any person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. Article 33(1) provides that no contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Part II of H.C. 395 contains rules relating to asylum applications.

The interpretation and application of the provisions of the 1993 Act have been variously considered. In R v Secretary of State for the Home Department, ex p. Sivakumaran [1988] AC 958 the House of Lords held inter alia that whether the applicant for refugee status had a well-founded fear of persecution within the meaning of Article 1A(2) of the Refugee Convention was to be determined objectively in the light of the circumstances existing in the country of his nationality; and that the applicant had to demonstrate a reasonable degree of likelihood that he would be persecuted for one of the reasons referred to in Article 1A(2) if he were returned to that country. I refer in particular to the speeches of Lord Keith of Kinkel at p. 994F and Lord Goff of Chieveley at p. 1000F-G. This decision therefore established that the burden of proving entitlement to refugee status rests on the applicant, and that the standard of proof is that there is a reasonable degree of likelihood of persecution for a reason falling within the Refugee Convention.

The phrase "is outside the country of his nationality" is discussed in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, published in 1979 by the office of the United Nations High Commissioner for Refugees ("the UNHCR"), which is regarded as authoritative. Paragraph 94 of the Handbook states:

"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."

The situation of Algeria in recent years is well-known, and has been considered by the courts in the United Kingdom on a number of occasions: see, for example, Abdadou v Secretary of State for the Home Department 1998 SC 504. In the present petition a number of sources of information are referred to, and various productions have been lodged in support of averments that in 1997 (and subsequently) Algeria was in such a state of internal turmoil that ordinary civilians in general and young males such as the petitioner in particular were at real and constant risk of their lives. The productions include a UNHCR Memorandum dated 21 November 1997. In this, Algerians seeking asylum in other countries were divided into three main categories, one of which was "those who claim to be threatened by militant Islamic groups because of their real or alleged support to the Government". This group included members of the security forces. With regard to this group, paragraph 3.1.6 of the Memorandum stated:

"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."

On 20 May 1997 the petitioner applied, as a refugee sur place , under the relevant provisions of H.C. 395 for political asylum in the United Kingdom and for leave to remain in the United Kingdom on the ground that if he were required to leave he would have to go to Algeria, where he feared persecution. On 19 June 1997 he was interviewed by an officer of the Immigration and Nationality Department (subsequently Directorate) of the Home Office ("the IND"). He was accompanied by a representative from a firm of solicitors, and a record was made of the interviewer's questions and his answers. During the course of the interview, he stated that he had never had anything to do with any political party or religious group. After training in carpentry he had undertaken military service in Algeria for two years from 1992 to 1994. He had no problems before completing his military service. After that, however, some people started to look for him. These were unknown people. After they could not find him at home they took his brother instead. They then killed his brother. This occurred in January 1997. The petitioner found out about this when his father contacted him and told him. When asked whether these people told his father why they were looking for him, the petitioner stated: "They wanted to kill me. That was it." He went on to state that they did not tell his father why they wanted to kill him. He said that he applied for asylum because he feared that if he returned to Algeria he would be killed by the unknown people who were after him. Later in the interview he stated that he wanted to add that there was no security in Algeria. The thing which proved that was the fact that his brother had been killed and his family had been threatened. Killings occurred on a daily basis. His family were threatened when his brother was taken away. They were not threatened after that, but they lived in fear. At the conclusion of the interview the petitioner's representative stated that he felt that the Algerian authorities were not able to organise themselves, let alone organise protection for threatened people.

By notice given by an officer of the IND on behalf of the respondent on 18 August 1997, the petitioner's application for leave to remain was refused because the respondent was not satisfied that he had a well-founded fear of persecution within the terms of the Refugee Convention. Reference was made to a letter, also dated 18 August 1997, which was said to provide full reasons for the respondent's decision. This letter communicated the respondent's decision to refuse the petitioner's application for asylum. Rather than attempting to summarise it, I propose to quote it in full. It was in these terms:

"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.

By notice dated 23 October 1997 the petitioner was informed of the respondent's decision to make an order under section 3(5) of the 1971 Act, ie. a deportation order, requiring him to leave the United Kingdom and prohibiting him from re-entering while the order was in force. The respondent proposed to give directions for the petitioner's removal to Algeria, the country of which he was a national. The notice was enclosed with a letter dated 23 October 1997, which also enclosed the notice and letter dated 18 August 1997. (It is not clear whether the earlier notice and letter were issued in August or whether all the notices and letters were issued in October. In any event, the terms of the letter dated 23 October 1997 were as such as to indicate that they should all be read together.) The material part of the letter dated 23 October 1997 was in these terms:

"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."

In this situation, the petitioner had certain rights of appeal. By section 8(3) of the 1993 Act, where the Secretary of State had inter alia decided to make a deportation order against a person by virtue of section 3(5) of the 1971 Act, the person might appeal to a special adjudicator against the decision on the ground that his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Refugee Convention. Section 8(6) provided that Schedule 2 to the Act should have effect and the preceding provisions of section 8 should have effect subject to that Schedule. The Schedule contained a number of provisions relating to appeals to special adjudicators, among which paragraph 2 provided that a person might not bring an appeal on inter alia the ground mentioned in sub-section (3) of section 8 of the Act unless, before the time of the decision, he had made a claim for asylum. An appeal under section 8(3) would accordingly operate as an appeal against a refusal of a claim for asylum. In addition, the petitioner had a right of appeal under section 15(1)(a) of the 1971 Act against the decision to make a deportation order, but by section 5(1) and (2) of the Immigration Act 1988, as a person who was last given leave to enter the United Kingdom less than seven years before the date of the decision, he was only entitled to appeal on the ground that on the facts of his case there was in law no power to make the deportation order for the reasons stated in the notice of the decision.

The petitioner exercised both these rights of appeal. In his notice of appeal to the special adjudicator he stated:

"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."

A hearing took place before the special adjudicator on 22 January 1998. The petitioner was represented by Mr R Singh of the Immigration Advisory Service, and the respondent by Ms M McCloy, Home Office Presenting Officer. The petitioner was not called to give evidence, and his representative relied on the contents of various documents, in particular, so far as the petitioner's personal circumstances were concerned, the record of the interview on 19 June 1997.

The special adjudicator's determination was dated 26 February 1998 and promulgated on 3 March 1998. At the outset, the special adjudicator recorded that he had allowed the letter dated 18 August 1997 to be amended by substituting "killed" for "shot" in paragraph 7. He then went on to summarise the competing submissions about the credibility of statements made by the petitioner at interview. Mr Singh said that the basis of the petitioner's claim for asylum was the event in January 1997 when unknown people came to his family home in Algeria looking for him, and as he was not there these people took his brother and killed him. In considering the credibility of this statement the special adjudicator accepted that no adverse inference was to be drawn from a decision by an appellant not to give oral evidence at an appeal hearing, but said that nevertheless, if there were omissions in an appellant's account, these might be relevant to an assessment of credibility. Commenting on a submission by Mr Singh, the special adjudicator said:

"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.

At this point I propose to discuss the procedural context in which the special adjudicator's determination was made, and the scope for a further appeal against it to the Immigration Appeal Tribunal ("the Tribunal"). The relevant procedural rules were contained in the Asylum Appeals (Procedure) Rules 1996 (which were subsequently revoked with effect from 2 October 2000) ("the 1996 Rules"). The appeal to the special adjudicator was a mixed appeal within the meaning of Rule 39, so that the rules applied both to the appeal under section 8 of the 1993 Act and that under section 15 of the 1971 Act. In terms of Rule 2(3) every determination was to consist of a concise statement of (i) the decision on the substantial issues raised, (ii) any findings of fact material to the decision and (iii) the reasons for the decision. For the purpose of considering whether the special adjudicator's determination sufficiently complied with this requirement, reference may appropriately be made to Wordie Property Co Ltd v Secretary of State for Scotland 1984 S.L.T. 345, in which Lord President Emslie said, at p. 348, in relation to administrative decisions generally:

"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."

Rule 13 of the 1996 Rules provided inter alia that an appeal to the Tribunal might be brought only with the leave of the Tribunal, that an application for leave should be made by serving upon the Tribunal the appropriate form accompanied by the original or a copy of the special adjudicator's determination together with all grounds relied on, and that, when an application for leave had been decided, the Tribunal should forthwith send to the parties to the appeal a notice recording its decision on the application for leave and, where leave to appeal was refused, the reasons for the refusal. Application was made on behalf of the petitioner to the Tribunal for leave to appeal against the special adjudicator's determination. The grounds submitted in support of the application were:

"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 duties of the Tribunal in considering whether to grant leave to appeal were considered in R . v Secretary of State for the Home Department, ex p. Robinson [1998] QB 929 , in which the Court of Appeal held inter alia that, although in seeking leave to appeal the applicant was required to state the grounds of his appeal, the appellate authorities were neither limited by the arguments actually advanced nor required to engage in a search for new grounds and that, since they were obliged to ensure that the applicant's removal would not contravene the United Kingdom's obligations under the Refugee Convention, where there was a readily discernible and obvious point in his favour, which had not been taken on his behalf, they, and the High Court exercising its supervisory jurisdiction by way of judicial review, should nevertheless apply it. This approach has been followed in Scotland: see, for example, the decision of the Extra Division in Parminder Singh v Secretary of State for the Home Department, 26 October 1999, unreported.

The determination of the Tribunal refusing leave to appeal was dated 17 March 1998. It was made by a chairman acting alone, in accordance with Rule 37 of the 1996 Rules. The determination stated:

"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."

The present application was lodged on 20 January 1999. It seeks judicial review of (i) the decision to deport the petitioner, (ii) the special adjudicator's determination and (iii) the Tribunal's determination. A fourth matter, which I discuss below, was added by amendment. Counsel for the petitioner explained that, because of the restricted nature of the appeal to the special adjudicator against the decision to deport the petitioner, judicial review of this decision was available. Reference was made to R. v Secretary of State for the Home Department, ex p. Swati [1986] 1 W.L.R. 477 in support of this submission. Counsel submitted that, insofar as paragraph 364 of H.C. 395 conferred a discretion on the respondent, which required to be exercised in light of the factors set out therein, there was no appeal to the special adjudicator against the exercise of the discretion, so judicial review of that aspect of the decision was available. A person might not be entitled to refugee status, but his compassionate and domestic circumstances might still make it inappropriate to deport him. This was why there was a separate challenge to the deportation decision, as well as to the determinations of the special adjudicator and the tribunal.

Counsel then embarked on a critique of the letter dated 18 August 1997. I do not need to go into this in any detail because counsel for the respondent accepted that the letter was defective. The writer of the letter failed to appreciate that the petitioner was applying for asylum as a refugee sur place . This is apparent from several passages in the letter. I mention some of these, by way of example. (1) In paragraph 3 there is a sentence which reads: "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 next sentence alleges that the petitioner's delay in claiming asylum could not be viewed as the action of a genuine refugee. This passage is only intelligible if the writer of the letter was under the mistaken impression that the petitioner claimed to have left Algeria because he feared persecution. (2) The same illusion is apparent in a sentence in paragraph 5, which reads:

"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.

In light of this, counsel for the petitioner submitted that the respondent had demonstrably misunderstood the petitioner's circumstances not only in refusing his application for asylum but also in deciding to make a deportation order. The Court, in giving the proper degree of scrutiny to the respondent's decision, was not only entitled to treat what was said about paragraph 364 of HC 395 in the letter dated 23 October 1997 with scepticism, but should conclude that the respondent had not taken into account all the factors before him. In the absence of anything to suggest that any consideration had been given to the relevant compassionate circumstances, the Secretary of State's reasoning was entirely incomplete. It was apparent from the decision itself that the proper test under paragraph 364 had not been applied. Counsel referred to R. v Immigration Appeal Tribunal, ex p. Bakhtaur Singh [1986] 1 WLR 910 in support of the submission that the phrase "all relevant factors" in paragraph 364 should be given a wide interpretation both by the Secretary of State and by this Court. In the circumstances of the present case, this extended to the general background of the situation in Algeria, which was known to the authorities in the United Kingdom, as well as the particular history of the petitioner. Even if there was not enough in the circumstances to support a claim for asylum, there might nevertheless be sufficient compassionate circumstances to lead the respondent to decide not to make a deportation order.

Counsel then turned to the right to life enshrined in Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Human Rights Convention") set out in Schedule 1 to the Human Rights Act 1998. He submitted that where a person's life was under threat, the degree of scrutiny of the Court should be of such an intensity that even minor flaws in a decision would render it a nullity. Counsel recognised that it was only open to this Court to interfere with an administrative decision on the grounds set out in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 . In a series of cases, however, it has been recognised that the more that an administrative decision interferes with human rights, the more the Court will require by way of justification before it is satisfied that the decision is reasonable: R. v Secretary of State for the Home Department ex p. Bugdaycay [1987] AC 514 , R . v Secretary of State for the Home Department, ex p. Brind [1991] 1 AC 696 and R . v Ministry of Defence, ex p. Smith [1996] QB 517 . Reference was also made to Abdadou v Secretary of State for the Home Department , R. v Secretary of State for the Home Department, ex p. McQuillan [1995] 4 All E.R. 400 and an article by Mr Michael Fordham entitled "What is 'Anxious Scrutiny'?" [1996] J.R. 81.

Counsel further submitted that the matter had been moved on by the Human Rights Act. The degree of scrutiny should now be informed by the decisions of the European Court of Human Rights, whose approach was much more proactive in its scrutiny. He submitted, under reference to Chahal v United Kingdom (1996) 23 EHRR 413 , that the material point is the Court's consideration. Counsel did not seek to argue for present purposes that the scope of judicial review had been changed by the Human Rights Act, but he did submit that it had the effect of intensifying the anxious scrutiny test. While what the respondent had said about paragraph 364 of H.C. 395 might have been sufficient some years ago, it was not sufficient now. Counsel also referred to the cases of Ahmed v Austria (1996) 24 E.H.R.R. 278, Vilvarajah v United Kingdom (1991) 14 EHRR 248 and Soering v United Kingdom (1989) 11 EHRR 439 . He submitted, on the basis of all these authorities, that the time had come for the courts of the United Kingdom further to intensify their scrutiny of administrative decisions. This was the approach which I should bring to bear in my consideration of the deportation decision.

Turning to the special adjudicator's determination, counsel referred to Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271 in which Kaja v Secretary of State for the Home Department [1995] Imm AR 1 was approved and explained. (Reference may also be made to the opinion of the First Division in Jasvir Singh v Secretary of State for the Home Department , July 2001 unreported.) As Brooke LJ explained in Karanakaran at p. 282, what the Tribunal in Kaja decided

"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.

Counsel for the petitioner then turned to his submissions about the determination of the Tribunal to refuse leave to appeal. Counsel for the respondent intervened, however, to concede that if the special adjudicator's determination was defective in these two respects, the Tribunal should have granted leave to appeal. In the discussion which followed this intervention, counsel for the petitioner said (contrary to what is sought in the petition) that he was not seeking reduction of the special adjudicator's determination. It was agreed that the appropriate course, if I was persuaded by the criticisms of the special adjudicator's determination advanced by counsel for the petitioner, was for me to reduce the determination of the Tribunal refusing leave to appeal, and remit to a chairman of the Tribunal for reconsideration of the application for leave to appeal.

Counsel for the respondent, while accepting the criticisms of the letter dated 18 June 1997 relating to the asylum application, submitted that the decision to make a deportation order was not irrational. Counsel submitted that I should apply the traditional test for judicial review. He referred to Wilson v First County Trust Limited [2001] EWCA Civ 633 and argued that the Human Rights Act was not retrospective. He accepted, however, that the approach in Abdadou v Secretary of State for the Home Department was available. But there were limits to what it was open to this Court to do. It could not substitute its own views on the merits: R . v Secretary of State for the Home Department, ex p. Isiko [2001] 1 F.C.R. 633. The respondent did correctly understand Rule 364 of HC 395 and apply it correctly to the circumstances. The letter refusing the asylum application, which required to be read in conjunction with the letter relating to the deportation decision, made it clear that the Secretary of State had applied his mind to the security situation in Algeria and the risk to the petitioner if he were returned there. No doubt, particularly when regard was had to paragraph 7 of the letter, it could be said that the letter could have been better expressed, and an entirely different view on the merits was possible, but in an application for judicial review this was not enough. In any event, the petitioner would have a separate right of appeal under section 65 of the 1999 Act when the deportation order was served on him, and this was a powerful safeguard.

Counsel for the respondent then embarked on a submission about the amount of detail which required to be given in an explanatory statement, and referred to R. v Secretary of State for the Home Department, ex p. Swati , R. v Immigration Appeal Tribunal, ex p. Razaque [1989] Imm.A.R. 451 and Mensah v Secretary of State for the Home Department 1992 S.L.T. 177. He referred to various procedural rules relating to explanatory statements. Counsel for the petitioner, however, intervened to point out that this was a mixed appeal under Rule 39 of the 1996 Rules, and counsel for the respondent accepted that this was so. He said that he had lost sight of this. He accepted that no explanatory statement was required because the letter refusing the asylum application gave all the reasons that were required to be given, and all the letters required to be read together. Approaching the matter in this way, it was clear why the decision had been taken to make the deportation order, and that all relevant circumstances had been taken into account in reaching this decision.

Counsel for the respondent went on to submit that there was no sound reason for criticising the special adjudicator's determination. The question for him was whether the petitioner had established a Refugee Convention reason for fearing persecution. Unless the petitioner could establish that Islamic militants sought to kill him because of his having supported the Government by performing military service, and that his brother was killed for this reason, he failed to establish his eligibility for refugee status. It was a reasonable inference that if persecution for such a reason was going to happen at all, it would happen during the period of military service or shortly afterwards. If what had taken place was just part of the general unrest in Algeria, this would not amount to a Refugee Convention reason. There was no flaw or logical error in the determination and the special adjudicator had given adequate and comprehensible reasons for his decision.

Counsel for the respondent concluded by saying that, if there was scope for criticism of the special adjudicator's determination, leave to appeal to the Tribunal should have been granted. All that required to be established for the purpose of obtaining leave was that there was an arguable point. He submitted, however, that there was no arguable point here.

I turn now to my decision on the application for judicial review of the decision to deport the petitioner and the determination of the Tribunal refusing him leave to appeal to it. As has been seen, there was discussion before me about the scope of judicial review of decisions affecting human rights. It is clear from section 6 of the Human Rights Act that this Court is required to avoid acting in a way which is incompatible with the Human Rights Convention: see Wilson v First County Trust Limited . No doubt the Act is not retrospective, but it has been binding on this Court since it came into force. The recent cases of R. (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 and R. (Daly) v Secretary of State for the Home Department [2001] UK HL 26 (neither of which was referred to by counsel) not only reinforce what was submitted to me about anxious scrutiny of executive decisions, but form a basis for further discussion about the scope of judicial review. For present purposes, however, I see no need to go further than to apply the traditional approach. In Bugdaycay v Secretary of State for the Home Department Lord Bridge said at p. 531E to G:

"[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.

The decision to deport the petitioner appears to me to be fundamentally flawed because of its undisputed failure to recognise that the petitioner had made a claim for asylum as a refugee sur place . This error appears to me to vitiate not only the letter dated 18 August 1997, which is defective in the respects I have already mentioned, but also the letter dated 23 October 1997, as the two letters must be read together. Not only do different considerations appear to me to arise in the case of a person who is already outside his own country and receives news which leads him to fear persecution for a Refugee Convention reason were he to return to that country, and the case of a person who flees his own country fearing persecution for such a reason, but also the very fact that such an important aspect of the petitioner's personal circumstances was misunderstood leads me to have no confidence in the statement in the letter dated 23 October 1997 that the respondent took into account all the relevant factors arising from paragraph 364 of H.C. 395. Substantial parts of both letters appear to me to be in standard form. No doubt, particularly when there are a large number of applications to be dealt with, it is efficient to use passages in standard form, but the risk of doing so is that some of these may be inappropriate to the individual case. This appears to me to have happened here, especially in the letter dated 18 August 1997. When I turn to the letter dated 23 October 1997, I can have no confidence that any proper consideration was given to the petitioner's circumstances, and in particular the potential risk to his life were he to be returned to Algeria. Given the limited right of appeal to the special adjudicator against the decision to deport the petitioner, which does not extend to the discretionary element of the decision, there is scope for interference by this Court. No doubt, if a deportation notice were served on the petitioner, he would have a right of appeal under section 65 of the 1999 Act, but that does not in my view afford a reason for failing to interfere with the decision to make a deportation order which is in itself fundamentally flawed. I accordingly propose to reduce the decision to deport the petitioner made on 23 October 1997.

Applying the same test of anxious scrutiny to the determination of the special adjudicator, I have come to the view that there are serious defects in it, such that leave to appeal against it ought to have been granted by the Tribunal. It seems to me to be clear enough that the petitioner's case was that he had a well-founded fear of persecution for a Refugee Convention reason because of his military service in Algeria. By inference, the unknown people who came looking for him in January 1997 were Islamic militants who intended to kill him because of this. It was only when they failed to find him that they took his brother instead and killed him. Given that the petitioner was claiming that there was a risk of his being killed if he were to return to Algeria, the special adjudicator required to follow with particular care the evidential approach set out on Kaja , as approved and explained in Karanakaran . I have already, in my summary of the submissions of counsel for the petitioner, drawn attention to passages in the special adjudicator's determination which it was argued, and I accept, were defective. The petitioner did not claim that he was being looked for before January 1997. In attributing to him and then rejecting such claim, the special adjudicator wrongly took account of a factor which had a clear bearing on his assessment on the credibility of the petitioner's claim. Moreover, if the special adjudicator went so far as to accept that unknown people had killed the appellant's brother in January 1997, there would need to be some clear reason why he did not go on to accept that the petitioner's brother was killed by people who were looking for the petitioner to kill him. No reason is given by the special adjudicator for adopting this selective approach. This failure means that it cannot be seen that the special adjudicator has taken proper account of the risk to the petitioner should he return to Algeria. Bearing in mind the tests to be applied by the Tribunal in deciding whether to grant leave to appeal to it, to which I have previously referred, this was a case in which in my view leave to appeal should have been granted. In saying this, I express no view as to what the outcome of the appeal should be: I simply take the view that there are arguable points which clearly emerge from a reading of the special adjudicator's determination, even though they were not specifically focused in the application for leave to appeal. The appropriate course appears to me to be to reduce the determination of the Tribunal dated 17 March 1998 and to remit to a chairman of the Tribunal, so that the matter can be considered de novo , but in light of the foregoing views.

One other substantial matter remains for discussion. Section 21 of the 1971 Act, so far as material, provided:

"(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."

By letter dated 9 June 1999 the petitioner's present Glasgow solicitors asked the respondent to consider whether it was appropriate to grant the petitioner leave to remain in the United Kingdom in light of fresh evidence which was set out in the letter. They stated that a named friend of the petitioner, who was a citizen of Algeria but resided predominantly in Dumfries (where the petitioner resides), visited Algeria in March 1999. While he was on leave there he had delivered to him a number of photographs of the petitioner's family home in Algeria. This had been subject to a bombing in December 1998. The photographs were delivered to the petitioner undeveloped, and were developed in the United Kingdom. Subsequently, during April 1999, the petitioner received a number of family photographs in order that he could confirm that the house in question was his family home. The solicitors enclosed an album of 25 photographs, and in the letter they gave a description of each of these. Several of them showed the petitioner and other family members outside (and in one case inside) the house before it was bombed. In one of them, said to show the family standing at the front steps, the steps were tiled in a distinctive pattern. The remaining photographs showed what was said to be the same house after the bombing. In one of them there were front steps, partly covered with rubble, but with some tiling exposed which had the same distinctive pattern. The solicitors drew attention to this as an identifying feature. In some of the earlier photographs one of the petitioner's brothers appeared. One of the photographs taken after the bombing was said to show the same brother and another man standing in the ruins of the building. The solicitors drew attention to this also as a means of identifying this as the petitioner's former home.

By letter dated 12 June 2000 (i.e. more than a year later) an officer of the Integrated Casework Directorate of the IND stated that the respondent had considered the further information submitted but he was not satisfied that the damaged house in the photographs belonged to the petitioner's family. The letter continued:

"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.

It appears that a proposed Minute of Amendment for the petitioner was intimated on 29 June 2000, in terms of which judicial review was sought of the decision contained in the letter dated 12 June 2000. As I understand it, the Minute of Amendment was not lodged in those terms in the present process, but it elicited a response. By letter dated 4 July 2000 the same officer of the Integrated Casework Directorate stated that it was being issued to provide the petitioner's solicitors with further clarification of the reasoning leading to the decision of 12 June. The letter continued:

"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."

On 5 July 2000 the petitioner's solicitors faxed a request (a copy of which has not been produced) that the respondent refer consideration of the petitioner's case to the appellate authorities under section 21 of the 1971 Act. On the same date the same officer of the Integrated Casework Directorate replied stating inter alia that the respondent had considered whether the photographs should be referred to the appellate authorities under section 21, that he had carefully considered the photographs but he remained of the view that the petitioner did not qualify for leave to remain in the United Kingdom; and that the respondent did not believe that the petitioner's case would benefit from further consideration by the special adjudicator or the Tribunal under section 21 and did not propose to make a reference. I shall call this "the section 21 decision".

The letter also summarised the respondent's approach to the application of section 21. I do not propose to repeat this here, because before me counsel were agreed that the correct approach is as set out in the decision of the Court of Appeal in R. v Secretary of State for the Home Department, ex p. Yousaf [2000] 3 All E.R. 649. The decision in that case was made on 21 June 2000, and no doubt it was taken into account when the letter of 5 July 2000 was written. I am content to follow the decision in Yousaf's case for present purposes. At pp.659-660 Sedley L.J., who delivered the principal judgment, said that since the respondent has in all cases a continuing power of reconsideration, it matters that he should be ready to exercise it in any suitable case; and this must involve a willingness to stand back a little from his own concluded view and to ask himself if another view is possible. He also said that the underlying purpose of section 21 is to enable the respondent "to ensure that well-founded applications and claims are not overlooked and are not defeated by merely technical errors." He went on to say:

"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."

Following receipt of the letter of 5 July 2000 the Minute of Amendment (No.12 of process) was lodged on behalf of the petitioner, and in due course I allowed the petition to be amended in terms of it. In the Minute, it is averred that the respondent erred in law in deciding to refuse the section 21 request. The photographs are evidence of continuing threat to the petitioner's life from militant Islamic groups if he were to return to Algeria. They are evidence which was not available at the time of the hearing before the special adjudicator, but which are reasonably capable of acceptance and which is supportive of the petitioner's claim and potentially decisive of the claim. The respondent, it is averred, ought to have considered whether his own conclusions about the new evidence might be capable of being evaluated differently from his views, and whether this might lead to a different outcome for the case. The respondent failed to do so, and his decision is accordingly wrong in law.

Counsel for the petitioner developed the point by arguing that if the respondent had considered the section 21 request appropriately, he would have appreciated that there was further material capable of suggesting that the family was still being targeted, and that this might lead the special adjudicator to a different conclusion. In reaching the view he had done, he had not shown a willingness to stand back a little from his own concluded view and ask himself if another view was possible. In deciding the matter as he had done he had misunderstood his function, and his decision on the section 21 request was accordingly Wednesbury unreasonable.

Counsel for the respondent, while accepting that the correct test was as set out in Yousaf , submitted that the new evidence was not potentially decisive. While the family home might have been bombed, no reason for it was given. If there were a reason, it might be potentially decisive. The respondent had exercised his discretion correctly. The new evidence was not evidence that the petitioner was being persecuted for a Refugee Convention reason.

Assuming that leave is granted to appeal to the Tribunal, the new evidence about the bombing of the family house, together with all other evidence upon which the petitioner seeks to rely, can be considered by the Tribunal. It is not therefore necessary for me to reach a concluded view about the section 21 decision. Had I required to do so, however, I would have been minded to reduce this decision also. The correspondence makes disquieting reading, both on its own and when related to the earlier correspondence. It is indeed the duty of the respondent to stand back a little from his own concluded view, particularly when matters of such gravity are under consideration. The test is not the view which the respondent himself takes about the merits of the new evidence, but the potential effect which, on a reasonable view, it might have on the special adjudicator or the Tribunal, as the case might be. The writer of the letters to which I have referred seems, however, to have gone out of his way to find reasons for forming a view on the merits of the new evidence. Some of these reasons were manifestly misconceived, such as the point originally taken about the developing of the photographs. While it is not for me to form a view on the merits, it is for me to consider whether it was unreasonable to reject the new evidence on the ground that it was not potentially decisive evidence reasonably capable of acceptance. To that end, I have considered the photographs. Allowing for the fact that the bombed house has been extensively damaged, I see no obvious reason to doubt that it is the same house as that shown in the earlier family photographs. I also see no obvious reason to doubt that it is the petitioner's brother who is shown standing in the ruins. It is possible to compare a number of features of both the building and the person. The most obvious feature of the building is indeed the tiling on the steps, which appears to me to identify the building as being one and the same. I therefore am of the view that it was unreasonable to reject this evidence on the merits, both because that was not the appropriate test and in any event because it was evidence which was reasonably capable of acceptance. Given that so much had turned on the credibility of the petitioner's statements at interview, part of which had been accepted and part rejected by the special adjudicator, it appears to me also that it was unreasonable to conclude that the new evidence was not potentially decisive. It was capable of leading to a different view both about the petitioner's claim that he was at risk of persecution and about the reason for it. This was indeed a case where it would have been appropriate for a section 21 application to be granted. As it is, however, the fresh evidence can be considered by the Tribunal once leave to appeal to it is granted.

Before concluding this Opinion, I should add that I was informed at the first hearing that the reason why it came so long after the petition had originally been lodged was that it had become known to those acting for the petitioner that he intended to marry a citizen of the United Kingdom. This led to a discharge of the original first hearing and to a sist of the proceedings for some months. The petitioner did indeed marry, and an application was then made for leave for him to remain in the United Kingdom for this reason. There had been a delay in processing the application (partly because of a failure to return a questionnaire). A decision had then been taken to proceed with the present petition irrespective of the application for leave to remain, which had still not been dealt with by the time of the first hearing before me. The matters I have discussed in this Opinion therefore take no account of the possibility that leave to remain may now be granted by reason of the petitioner's marriage.

On the whole matter I am satisfied that the appropriate course is for me to reduce the decision to deport the petitioner made on 23 October 1997 and the determination of the Immigration Appeal Tribunal dated 17 March 1998. I shall accordingly sustain the first and third pleas-in-law for the petitioner to the extent of reducing the respondent's decision to deport the petitioner made on 23 October 1997 and the determination of the Immigration Appeal Tribunal dated 17 March 1998.