Nenni v Secretary of State for the Home Department

On a statutory appeal from the Immigration Appeal Tribunal, the Court of Appeal may intervene only for an error of law. The need for anxious scrutiny in asylum and Article 3 cases does not alter that limit.

Past persecution or ill-treatment is highly probative of present risk, and may sometimes be decisive. It does not, however, automatically establish a well-founded fear or a real risk of treatment contrary to Article 3 of the European Convention on Human Rights. The decision-maker must assess all relevant circumstances and explain why the past treatment does not justify the inference of future risk.

The appellant, an Algerian citizen of Berber ethnicity, appealed against the Immigration Appeal Tribunal's decision, notified on 11 November 2003. The Tribunal had dismissed his appeal from an adjudicator's decision of 17 March 2003 rejecting his asylum and human-rights claims.

The adjudicator accepted that the appellant had twice been detained and roughly treated during general investigations after terrorist incidents. The Tribunal accepted that the past treatment reached the Article 3 threshold. It nevertheless found no real risk of repetition on return to Algeria, because he had not been specifically targeted or charged and had later lived in Algiers without difficulty after ceasing to report to the authorities.

The central issue was whether the Tribunal had erred in law by failing to treat the past Article 3 ill-treatment as establishing a present risk.

1. Appeal dismissed unanimously. Lord Justice Keene, with whom Lord Justice Maurice Kay and Lord Justice Peter Gibson agreed, held that the Tribunal had made no error of law and had reached a conclusion open to it.

2. The appeal was a statutory appeal on a point of law from the Immigration Appeal Tribunal. Although asylum and Article 3 claims require anxious scrutiny because of the grave consequences of error, that did not permit the Court of Appeal to substitute its own assessment absent an error of law by the Tribunal.

3. Demirkaya v Secretary of State for the Home Department [1999] INLR 441 did not establish that past persecution necessarily proves a present well-founded fear unless circumstances have significantly changed. Past treatment has evidential and potentially decisive weight, but it is an inference-bearing fact. The decision-maker must consider all relevant circumstances and give reasons if it concludes that no present risk follows. That approach accorded with Adan's case [1999] 1 AC 293, which recognised that historic fear may evidence present fear but is not by itself sufficient.

4. The Tribunal had considered the appellant's past ill-treatment. It was entitled to weigh against future risk that the detentions followed general round-ups, he was not charged, he was released, and he remained in Algeria for about two years without further persecution or Article 3 ill-treatment. His nine or ten months of residence after he stopped reporting, without evidence that the authorities sought him, could properly support the finding that he was no longer of current interest.

5. The Tribunal was therefore entitled to conclude that neither the breach of the reporting requirement nor the past detentions created a real risk of persecution or treatment contrary to Article 3 on return. The appeal was dismissed. There was no order for costs, save detailed assessment of the appellant's Community Legal Service Funding certificate.

• Court of Appeal (Civil Division) — dismissed the statutory appeal on a point of law from the Immigration Appeal Tribunal.

• Immigration Appeal Tribunal — by a decision notified on 11 November 2003, dismissed the appellant's appeal against the adjudicator.

• Adjudicator — by a decision promulgated on 17 March 2003, dismissed the appellant's asylum and human-rights appeals.