Mouhoub v Secretary of State for the Home Department

In an Article 3 removal case, the tribunal must assess both the seriousness of the prospective harm and the likelihood of its infliction. The claimant must establish a real risk of torture or inhuman or degrading treatment. The preferred formulation should be used consistently, although the Court of Appeal left open whether reasonable likelihood materially differs from real risk because any such error would not have affected the result. An appellate court should not re-weigh country evidence where the specialist tribunal was entitled to evaluate it, including cautious use of second-hand material and information from non-state organisations or the authorities.

An Algerian national who had deserted from the Algerian Army claimed asylum and protection under Article 3 of the European Convention on Human Rights. The Secretary of State refused his asylum application on 8 December 2000. An adjudicator dismissed his appeal on 13 March 2002 and rejected his claim based on the Human Rights Act. The Immigration Appeal Tribunal dismissed his further appeal on 14 October 2002.

Before the Court of Appeal, the appellant challenged the Article 3 risk assessment, the tribunal’s treatment of country evidence, and the refusal to permit an amendment based on a heavier desertion penalty. The central issues were whether the tribunal had applied the wrong risk threshold and whether its evidential evaluation disclosed an error of law.

1. Appeal dismissed. The Court of Appeal upheld the Immigration Appeal Tribunal’s dismissal of the appellant’s appeal. Lord Justice Carnwath agreed entirely with Lord Justice Brooke’s judgment, and Mr Justice Nelson agreed with both judgments.
2. Proposed amendment. The appeal had proceeded on an evidential basis that the likely penalty for desertion was between six months and 10 years’ imprisonment. The appellant’s proposed new argument depended on reading the country report as exposing him to 10 to 20 years’ imprisonment with forced labour. His own expert had distinguished desertion within Algeria from desertion abroad. The proposed amendment therefore had a thin evidential foundation and was refused.
3. Article 3 test. The tribunal correctly identified the task as assessing both the risk and seriousness of prospective degrading treatment. The Court accepted the real-risk formulation reflected in Devaseelan [2002] UKIAT00702 and the guidance in Kacaj [2002] Imm AR 213. It was unfortunate that the tribunal later used the expression reasonable likelihood. The court expressly left open whether that wording involved a materially different test.
4. Evidence and appellate review. Tribunals assessing future events must take account of the guidance in Karanakaran [2000] 3 All ER 449. The tribunal was entitled to weigh evidence about changing military policy, the treatment of deserters, and the general human-rights situation. With appropriate caution, it could consider second-hand material, information from Algerian authorities, and the absence of reports of torture from a non-state-linked organisation. General evidence of serious human-rights problems did not itself establish a real risk to this particular deserter.
5. The Court of Appeal was concerned with points of law and could not say that the outcome would have differed even if the tribunal had used a significantly different formulation. Lord Justice Carnwath additionally held that the alleged unfairness concerning evidence from other cases was unsupported by evidence of what occurred below and was outside the grounds for which permission had been granted. The formal order was: Appeal dismissed.

1. Court of Appeal (Civil Division) In Mouhoub v Secretary of State for the Home Department [2003] EWCA Civ 738, the appeal from the Immigration Appeal Tribunal was dismissed.
2. Immigration Appeal Tribunal On 14 October 2002, the tribunal dismissed the appellant’s appeal from the adjudicator.
3. Adjudicator On 13 March 2002, the adjudicator dismissed the appeal against the Secretary of State’s refusal of asylum and rejected the claim based on the Human Rights Act.
4. Secretary of State for the Home Department The asylum application was refused on 8 December 2000.