Tsagaan v Secretary of State for the Home Department [2004] EWCA Civ 1506

Case No C4/2004/0844[2004] EWCA Civ 1506
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
IMMIGRATION APPEAL TRIBUNAL
(MR D PARKES, MR J PERKINS, MRS M ROE)
Venue Royal Courts of JusticeDate Tuesday, 12 October 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE KENNEDY
LORD JUSTICE CHADWICK
LORD JUSTICE MAY
Between
TULGA TSAGAANAppellant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR ABID MAHMOOD (instructed by Johar & Co of Leicester) appeared for AppellantMR PAUL BROWN (instructed by Treasury Solicitor) appeared for Respondent
J U D G M E N T

LORD JUSTICE KENNEDY:

This

[1]is an appeal from a decision of the Immigration Appeal Tribunal for which Lord Justice Sedley has granted leave. Since he did so the Secretary of State has accepted that the decision of the Immigration Appeal Tribunal should be set aside, and on 28 May 2004 a draft consent order was sent to the appellant, but the order provided for the matter to be remitted to a differently constituted Immigration Appeal Tribunal for re-determination. The appellant was not agreeable to that course. On his behalf it is contended that the decision of the Immigration Appeal Tribunal should be set aside, leaving the decision of the adjudicator to stand. So the matter has come before us. Background[2]The appellant is a native of Mongolia. He was born on 19 June 1971, so he is now 33 years of age. On 9 March 2002 he entered the United Kingdom on a forged passport. On 21 March 2002 he claimed asylum by post. He was then interviewed, and his application was refused on 11 May 2002. He appealed to an adjudicator who gave her decision in his favour on 14 September 2002. The Secretary of State then appealed to the Immigration Appeal Tribunal which, on 29 December 2003, allowed his appeal. It is that decision which is now under appeal to this court. Appellant's asylum claim[3]The appellant's claim for asylum is based on treatment which he says he suffered in Mongolia.[4]In August 2001 a woman entered his flat at about 8.00 am, saying that she was a friend of his neighbour. Soon afterwards she fell from the balcony of his flat and sustained fatal injuries. He claims not to have known her name or why she fell. He was suspected of murder and was arrested, tried, convicted and sentenced to 8 years' imprisonment. He was in police custody for two days after his initial arrest on 24 August 2001 and thereafter he was in prison. He says that he was subjected to violence whilst in police custody but that he did not admit guilt, either then or later. He asserts that he was only convicted because under Mongolian law there was no presumption of innocence. He was in the flat from which the deceased fell and could not explain her fall, and that, he says, was sufficient, but he did lodge an appeal.[5]He remained in prison from two days after his arrest until March 2002. Within that period he says that he was moved from cell to cell and was subjected to degrading and inhuman treatment by other prisoners and by prison guards. He was beaten and forced to drink urine and eat faeces, and eventually he developed kidney problems. He suspected that he was subjected to ill treatment because, although he had been convicted, the investigating officer wanted him to confess, and asked long serving prisoners to get the confession.[6]When he became ill he was transferred to hospital. He was then able to escape by climbing out of a window. He travelled by way of Ulan Bator and Russia to the United Kingdom. When he left Mongolia his appeal had yet to be heard and that may still be the position. Before the Adjudicator[7]When his appeal against the decision of the Secretary of State came before the adjudicator his representative conceded that he could not establish his claim for political asylum. But he prayed in aid -(1) the alleged unfairness of the trial, which would not have satisfied the requirements of Article 6 of the European Convention on Human Rights, and(2) the appellant's experiences in prison which, it was said, amounted to inhuman and degrading treatment within the meaning of Article 3 of the European Convention. The adjudicator heard evidence from the appellant and considered documentary evidence which included a US State Department Report of 2002, that, she said, recorded police committing human rights abuses, arbitrary arrest and detention and corruption. She also considered the Country Information and Policy Unit bulletin for Mongolia dated May 2001.[8]Applying a low standard of proof applicable in human rights appeals against removal, the adjudicator found the appellant to be a credible witness. She therefore accepted the core of his account. As to the treatment in prison, she said:
"The assaults may have been part of the prison 'top dog' culture and breaking a prisoner's will or, as the appellant suspects, at the behest of a police officer to break his resolve to appeal given he had made the complaint of ill treatment. There is a clear indication of the latter being at least contributory to what he suffered."
Mr Mahmood believes that the clear indication can only have come from the appellant's own uncorroborated oral evidence.[9]The adjudicator's conclusion, as I understand it, was that if he were to be returned he would be subjected to treatment amounting to a contravention of Article 3, and the return would violate Article 6 (2) because his guilt and imprisonment is founded on the denial of a presumption of innocence. At paragraph 43 the adjudicator said:
"I accept the submission that the appellant's conviction was unlawful, and that his detention cannot be said to be lawful. However, it is the conditions in which he is at real risk of being detained that I find render return contrary to Article 3."
[10]There was no medical evidence before the adjudicator. She said (at paragraph 45) that her findings "only just crossed the real risk or reasonable likelihood threshold", but because they crossed it she allowed the appeal on human rights grounds. Before the IAT[11]The Immigration Appeal Tribunal was troubled by the adjudicator's apparent acceptance that the absence of a presumption of innocence was critical. Her approach apparently was that other safeguards were irrelevant, so if a legal system did not presume innocence a convicted prisoner could not be returned. That was said to be inconsistent with the decision of this court in R (Ullah) v Special Adjudicator [2003] 1 WLR 770.[12]As to the prospect of ill treatment on return, the Immigration Appeal Tribunal noted that the treatment allegedly inflicted by other prisoners came from non-state actors and therefore raised the question of whether there was effective protection by the State. As to documentary material, it said:
"We have considered the evidence relating to prison conditions in Mongolia set out in the CIPU report. No other relevant evidence is before us. For the avoidance of doubt we make it plain that the CIPU report is an extended bulletin dated January 2003 rather than the more usual country assessment. We notice that prisons are overcrowded and facilities are generally poor. We notice that tuberculosis used to be rife but the government has addressed that problem and there has been a significant decline in the number of deaths of prisoners from tuberculosis. We also noted that the government permits visiting by international human rights monitors and that new training has been implemented. Overcrowding has declined in prisons although insufficient food, heat and medical care threaten the health and life of inmates. We do not take this to mean that there is a real risk to the life of all prisoners in Mongolia but that prison conditions are poor and that some prisoners may die as a result."
That CIPU 2003 report, to which the Immigration Appeal Tribunal referred, was not the bulletin which had been before the adjudicator.[13]The Immigration Appeal Tribunal went on to say at paragraphs 13 and 14 of its determination:
"Nevertheless we do not accept that prison conditions in Mongolia generally are so poor that they can be described properly as inhuman or degrading. Neither do we see any reason why this claimant's appalling experiences should be repeated in the event of his return. Even if they do there is no basis for concluding that effective protection is not available. The only evidence about the involvement of the authorities is that they took the claimant to hospital when his condition deteriorated. That cannot be seen as an indication of indifference to the plight of the prisoner. The adjudicator speculated that the authorities may have acquiesced in his ill treatment. We have not been shown any background material to indicate that that kind of arrangement is common place in Mongolia and we see no reason to accept that this claimant was singled out for such treatment. The fact is that he has been convicted. We do not see why the authorities would want to break his will or otherwise coerce him. The adjudicator indicated at paragraph 45 of the determination that her findings 'just crossed the real risk ..... threshold'. We find that conclusion was not available to her on the evidence."
The Appeal to the Court of Appeal[14]The appellant then lodged an appeal to this court. In May 2004 Lord Justice Sedley extended time and gave permission to appeal on the basis that the Immigration Appeal Tribunal may have gone too far by setting aside the adjudicator's findings of fact on the basis that it preferred a different view. He referred to the decision of this court in Subesh [2004] IAR 1. Attempt to Compromise[15]On consideration of the papers the Secretary of State concluded that the decision of the Immigration Appeal Tribunal should be set aside because it failed to have regard to the other documentary evidence before the adjudicator and, in particular, the US State Department Report of 2002 which was relevant to both conditions in Mongolian prisons and the responsibility of the authorities for inhuman and degrading treatment. But the Secretary of State did not accept that the adjudicator was right. Issues remained as to -(1) the way in which the adjudicator dealt with Article 6,(2) the conclusion she reached as to the treatment which the appellant had suffered(3) the involvement, if any, of the authorities, and(4) the prospects of ill treatment on return. So the Secretary of State suggested remission to the Immigration Appeal Tribunal. As I have indicated, that suggestion fell on stony ground. Before Us[16]Before us Mr Mahmood, for the appellant, has submitted that we should simply allow the appeal and not send the matter back to the Immigration Appeal Tribunal because -(1) even if the adjudicator was wrong in her approach to Article 6, that is not critical, and(2) what matters is what will happen if the appellant is returned, and as to that the adjudicator had evidence from the appellant as to his treatment in the past and was able to derive assistance from the documentary evidence to which she was referred. The Immigration Appeal Tribunal, Mr Mahmood submits, should not lightly interfere with the conclusions of the adjudicator (see Subesh), and if the matter is sent back to the Immigration Appeal Tribunal there is a danger that the Secretary of State will take the opportunity to introduce fresh material to meet the appellant's case.[17]Mr Paul Brown, for the Secretary of State, submits that in reality the appeal of the Secretary of State to the Immigration Appeal Tribunal has yet to be heard and properly determined. The decision which was made has had to be discarded for the procedural reasons which I have set out, that there are live issues still to be considered, namely -(1) the Article 6 issue. The adjudicator's approach to that issue is, it is said, plainly wrong. In Soering v United Kingdom (1989) 11 EHRR 439, which concerned the return of a West German citizen to face trial and the possibility of the death penalty in Virginia, the European Court said (at paragraph 113) that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. That is the test, which is not to be confused or over-simplified by referring simply to the presumption of innocence set out in Article 6 (2).(2) It is at least arguable that the adjudicator did not adopt a correct approach to Article 3. As Mr Mahmood recognises, the issue in relation to that Article was, as said in Soering at paragraph 91, whether there were substantial grounds for believing that the appellant if sent back to Mongolia faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in that country. If that were shown to be the case then the United Kingdom would be in breach of its obligations under Article 3 if it were to repatriate him. So although it was relevant to know what had happened to the appellant in the past, the focus had to be on what was likely to happen to him if returned. That emphasis is not apparent from reading the adjudicator's decision.(3) The Immigration Appeal Tribunal has to decide whether or not to uphold the decision of the adjudicator having regard to the situation at the time of its determination. So the Immigration Appeal Tribunal was right to have regard to the fresh documentary material placed before it, and anyway no one seems to have objected to the introduction of that material. Its error lay in failing also to have regard to the material which had been before the adjudicator. If the matter goes back to the Immigration Appeal Tribunal there may be yet more material from either side, subject to the restrictions indicated by the rules and by the authorities. But the Secretary of State is still entitled to have a decision from the tribunal after considering all relevant material which it ought to consider, bearing in mind that this case relates to a decision of an adjudicator taken prior to 9 June 2003 when Section 101 of the Nationality Immigration and Asylum Act 2002 came into force.[18]This, Mr Brown submits, is not a case like Oleed v Secretary of State for the Home Department [2003] IAR 499 in which it could be said that there was nothing wrong with the decision of the adjudicator and hence no reason for the Secretary of State to have appealed from that decision. Conclusion[19]In my judgment, the submissions made on behalf of the Secretary of State are plainly right, and the appropriate order in this case is that -(1) the appeal is allowed.(2) the determination of the Immigration Appeal Tribunal of 29 December 2003 is set aside.(3) the matter is remitted to a differently constituted tribunal for re-determination.[20]Although Mr Mahmood has tried valiantly to persuade us to reach a different conclusion, it is obvious that the order I propose reflects the order proposed by the Secretary of State in May. Although we have not heard the basis on which it was decided that public funding should be made available in order to further the proceedings in this court, looked at from the point of view of this jurisdiction, it seems to us to be regrettable that that funding was made available.

LORD JUSTICE CHADWICK: I agree.

LORD JUSTICE MAY: I agree that this appeal should be allowed but that the matter should be remitted for reconsideration by a differently constituted Immigration Appeal Tribunal for the reasons given by Lord Justice Kennedy, whose account of the facts and circumstances of the appeal I gratefully adopt.

[23]In my view, the central question in this case turns on an assessment of prison conditions in Mongolia to determine whether, if the appellant is returned to prison in Mongolia, he will be subjected to inhuman and degrading treatment, such that this country in returning him would be in breach of its obligation under Article 3 of the Human Rights Convention. The Immigration Appeal Tribunal reached their conclusion against the appellant on the basis of the CIPU report of January 2003 but without, it is accepted, sufficient consideration of the 2002 US State Department Report. It is accepted on behalf of the Secretary of State that for this reason the appeal should be allowed.[24]The only question is whether this court should allow the appeal and restore the adjudicator's decision or order the matter to be reconsidered by a differently constituted Immigration Appeal Tribunal. It seems to me that we should remit unless we are persuaded that the adjudicator's decision about prison conditions in Mongolia should obviously be restored and that the Immigration Appeal Tribunal decision on this matter is unsustainable upon a full consideration of all relevant material. The trouble with this is that the adjudicator did not have and did not therefore consider the 2003 CIPU report. Without wishing to formulate any general principle about when, under the old law, the Immigration Appeal Tribunal were able to entertain material that was not before the adjudicator, it seems to me that this court cannot overlook material which was in fact admitted before and considered by the Immigration Appeal Tribunal so far as I can see without objection on behalf of the appellant. The power of the Immigration Appeal Tribunal to receive additional material accords with the decision of this court in Ravichandran although I entirely accept that this is not a power which should be used simply to spin things out (see decision of this court in Oleed).[25]For this reason it seems clear that we cannot conclude that the adjudicator's decision was so plainly right that it should be restored without further investigation. This is particularly so when the adjudicator herself reached a conclusion saying that the case only just crossed the threshold for Article 3. Nor do I consider that in this case this court should conduct the reconsideration itself. The Immigration Appeal Tribunal, with its special expertise, should in my view do this.[26]I agree for these reasons that upon the appeal being allowed the matter should be remitted to the Immigration Appeal Tribunal for reconsideration.

Order

Appeal allowed with the costs of appellant to be subject to detailed assessment. Matter to be remitted to IAT

Cited in 3 later judgments