EG (Russia) & Anor v Secretary of State for the Home Department [2007] EWCA Civ 354

Case No (1) C5/2006/2664 & (2) C5/2006/2417[2007] EWCA Civ 354
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. AS/20254/2004 & AS/00386/2005]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 3 rd April 2007
Before
LORD JUSTICE WARDLORD JUSTICE SEDLEY
Between
(1) EG (Russia)Appellants(2) VG (Russia)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPELLANTS APPEARED IN PERSON. for in person for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]The applicants before us are a mother and daughter who come from a Russian city where the mother was both a medical practioner in paediatrics and, in effect, a senior public health officer. It was her case that in the mid part of 2003, she came under pressure to sign false certificates of medical incapacity for the sons of influential local families who would otherwise be called up for military service.[2]The outcome of her refusal to do this was summarised in this way by the Asylum and Immigration Tribunal at paragraph 3 of their decision of 20th July 2006:
“Very briefly, the appellants told a long a harrowing tale of persecution, beginning in June 2003 and ending only when they left Russia in August 2004. What triggered it was the mother’s refusal to sign medical certificates (she was a doctor) in a ‘scam’ to get conscripts off doing military service, and in particular being sent to the war zone in Chechnya. She later tried to publicise this corrupt practice, and joined an organisation, rather vaguely called ‘For Human Rights’, in her native city [I leave out the name of it because the applicants are anonymised]. The consequences of this were horrendous. On three occasions the mother was beaten up so badly that she was hospitalised. Twice the daughter was beaten up and hospitalised. On one occasion the son was severely beaten, and on another the father was first beaten and then put inside his car, which was pushed over a precipice. In the end the mother’s sister had her throat cut, having been mistaken for the mother. On top of that, the family home was twice ransacked, and documents, disks and tapes were seized. There was also a constant backdrop of threatening phone calls.”
That is not the whole story. The family were said to have moved in an attempt to escape persecution, but without success. It is enough, however, to give their flavour of their account.[3]Early in this period, as both applicants testified, they and the first applicant’s husband, an engineer, had joined a local civil rights organisation to gain some protection. In-county evidence indicates that such organisations, some of them governmental, do exist in Russia, but they can only report and recommend.[4]Mother and daughter began to participate publicly in the organisation’s work and were rewarded for it by being arrested and beaten up by the police, who in response to a complaint first denied all knowledge of it and then charged the mother with criminal slander. This, at least, was their account.[5]The Home Office rejected their asylum claims. On appeal to the AIT the immigration judge, Mr Birkby, disbelieved the entirety of their joint account. He did so on a series of grounds, of which the second was that their account had been “vague, evasive, inconstant and above all implausible” on a series of points, and the third of which was that in the light of their general unreliability, the documents produced by them in support were probably false. It is on the latter of these alone that the application for permission to appeal at present turns.[6]But before I come to it, I want to say something about the first of the immigration judge’s grounds for dismissing the asylum and human rights claims. This is what the immigration judge said after summarising the applicant’s evidence, but before turning to the critique of the detail of it. At paragraph 28 in the decision of Immigration Judge Birkby, prepared on 3 October 2005, one reads:
“What I find of most concern was why the First Appellant and the First Appellant’s husband continued their involvement in a civil rights organisation bearing in mind that the more they got involved the more they suffered horrendous treatment form the authorities. It was not just treatment as against the First Appellant, the mother, but also the treatment as against her daughter, the Second Appellant, her husband and her son. Despite all of that ill treatment the First Appellant and her family allegedly continued their involvement and continued to seek to publicise their case. Both the First Appellant, the Second Appellant and the First Appellant’s husband were simply not credible in the explanations they gave as to why they continued to take the risks that they did. They were hesitant in accepting that what they were doing was risky in any event. There evidence in my view was evasive. Their main reason for saying that they continued to pursue their plight with the human right’s organisation was in order to secure more protection as they said the[y] believed that the more publicity they obtained the safer they would be. Bearing in mind that the First Appellant is obviously a highly intelligent lady, who I accept to have worked in Russia as a paediatrician and a TB specialist, and that the husband was a highly qualified engineer, and that the daughter was at university, their evidence beggars belief.”
[7]I am bound to say that as at present advised, I find this passage disturbing, even shocking. Russia, on the in-country and expert evidence, is a state where things like this can and do happen. There may well of course be asylum seekers who falsely claim to have faced local or state sponsored violence and threats, but there must also be brave and principled people who, for as long as they can stand it, refuse to be cowed and who fight back, if only by joining with others and trying to obtain publicity for what is happening to them.[8]One of the many difficult tasks of immigration judges is to tell one from the other, and an adverse conclusion properly arrived at has to be respected. But it is in my view wholly unacceptable for a fact-finder to start with a passage like the one I have quoted. Such an approach denies credit to even the possibility of the kind of courage which asylum and human rights law are there to recognise and to shield.[9]The point of the determination at which the immigration judge allows himself this assault on the appellants’ credit, a point at which nothing as yet been decided by him about the detail of the claims, makes it in my present view a particularly unfortunate passage. But it would be very little less unfortunate if it had come later in the decision, because it purports to be a free-standing ground for disbelief.[10]One regrets to see, moreover, that in the AIT’s decision upholding that of the immigration judge, this element not only passes without adverse comment, but is built upon:
“What [the immigration judge] found implausible was the mother’s insistence on inviting persecution for a year after she declined to take part in the ‘scam’.”
[emphasis added] Then apropos the family’s temporary move:
“What he disbelieves is that the family continued to make trouble and provoke retaliation from the authorities …”
[emphasis added] To anyone who has lived through any part of the 20th century, further comment is superfluous.[11]The senior immigration judge’s order for reconsideration by the AIT was limited to a single issue: the immigration judge’s treatment of the expert evidence, given on the applicants behalf by Dr Robert Chenciner. The AIT, however, accepted that they had before them two grounds for seeking a review. In paragraph 14 they say:
“We come now to the grounds for seeking a review, which essentially argue two points. The first is the that judge ought not to have relied on any notion of ‘implausibility’ to justify his disbelief in the appellants’ account … The second ground of challenge is that the judge reached his credibility findings before taking account of the documentation emanating from Russia and of the expert evidence provided by Dr Chenciner.”
Both of those grounds failed, the first one summarily. The notice and grounds of appeal which are before us at the moment raise only one aspect of the second of the issues enumerated by the AIT, namely that the Tanveer Ahmed decision was not properly applied at either level.[12]While the immigration judge left the authenticity of the documents until last and then rejected them, because in effect they were produced by already discredited applicants, it is argued that this is just the situation envisaged by the fourth Tanveer Ahmed possibility, which is the one which the one which the AIT left out of their taxonomy in paragraph 15: namely that the documents were false but the information in them true.[13]If all else were to fail for these applicants, I think there would be life in the possibility that the documents had been produced to order but record a true fact, namely, as I understand it -- although we have not seen the full documentation -- that the first applicant has indeed been charged with criminal slander. It may be, however, that the content of the document is other than this.[14]It needs to be noted in this regard that while the Home Office’s main concern was the alleged similarity of these documents with those in other Russian asylum claims (see paragraphs 8 and 25 of the immigration judge’s decision) this played no part in his decision (see his paragraph 37).[15]Having said this, I am not at all convinced that all else has to fail. While Sir Henry Brooke understandably dealt with permission to appeal on the papers on the basis of the Tanveer Ahmed point alone, it is not too late for the applicants to seek this court’s permission to amend their grounds of appeal to include the first issue mentioned and summarily dismissed by the AIT, namely the immigration judge’s blanket reliance on “implausibility”.[16]The AIT, one notes, observed that the point had “not found favour” with the senior immigration judge who ordered reconsideration, but did not treat it as outside their remit. If the opening salvo of disbelief is found to have been unjustified, it may arguably follow that the specific heads of disbelief which follow need dispassionate reconsideration, too.[17]For these reasons I would adjourn this application for restoration on notice to the Home Office. Upon restoration, I very much hope that the applicants will have been able to secure legal representation, which they badly need, and that the Home Office for its part will have given consideration to at least two things. One is whether this is, on the face of it, a case which calls for full reconsideration by the AIT, in the light of the serious concerns which I have expressed above. If not, the other is whether it is right to oppose the enlargement of the grounds of appeal so as to enable the court to consider the matter in its entirety.[18]I agree.

Order

Application adjourned.