Vylegzhanin v Secretary of State for the Home Department [2015] EWCA Civ 817

Case No C5/2014/2493[2015] EWCA Civ 817
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Venue Royal Courts of JusticeDate Tuesday, 30 June 2015
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE LONGMORE
ALEXEY VYLEGZHANIN
Applicant/Appellant
-v-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant/Respondent
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Mr Raphael Jesurum (instructed by Howe & Co Solicitors) appeared on behalf of the Applicant
The Defendant did not appear and was not represented
J U D G M E N T
Between
VylegzhaninAppellantSecretary of State for the Home DepartmentRespondent

LORD JUSTICE LONGMORE:

[1]In March 2005 Mr Alexey Vylegzhanin arrived in the United Kingdom on a student visa. He is a Russian gay man. That visa expired in September 2005. He overstayed and has been in this country ever since.[2]On 5 September 2011, he was arrested for conspiracy to defraud. He was remanded in custody at Wormwood Scrubs. While he was there he was served in November 2011 with a notice of removal as an overstayer. In due course, on 19 January 2012, he pleaded guilty at Blackfriars Crown Court to an indictment containing a number of offences of dishonesty. He was sentenced to 18 months for those offences and a further 6 months consecutive for having a Lithuanian passport in a false name. In the course of the sentencing remarks HHJ Marron said:
"You have pleaded guilty to a serious conspiracy to defraud banks and other financial institutions. Through some dishonest device you managed to acquire the credit card details of citizens of the United States of America, more than 100 sets of information, you also acquired bank credit cards or swipe cards and cloned that information on to the magnetic strips of those cards. You then used those cloned cards to real financial effect costing banks nearly £40,000. You then enjoyed the fruits of your financial dishonesty; you were also sending substantial sums to your homeland. You also must be dealt with for a Lithuanian passport in a false name. I am afraid it is my judgment that you were a vital part of this conspiracy and a prison sentence is absolutely inevitable. The scheme was fraudulent from the outset, professionally planned and conducted over a significant period of time."
[3]On 18 September 2012, the Secretary of State made a deportation order of Mr Vylegzhanin as a foreign criminal, which was served on 1 October 2012. Only then did Mr Vylegzhanin indicate that he wished to apply for asylum.[4]On 7 January 2013, the Secretary of State refused to revoke her deportation order and rejected the asylum claim on the basis that there was a sufficiency of protection for gay people in Russia, and also because of the delay in claiming asylum. Mr Vylegzhanin appealed to the First-tier Tribunal, which after a hiccup that caused a second hearing to be undertaken, rejected his appeal. The tribunal held that his account of persecution while in Russia was not credible and that, while there was "a societal stigma and discrimination", that did not amount to a risk of persecution.[5]In the course of the hearing Mr Vylegzhanin relied on a report of a Dr Robert Chenciner in relation to Russian law. Dr Chenciner did not say that he was qualified in Russian law. The tribunal did not consider that report to be a balanced report as an expert report should be. It went on to reject Dr Chenciner's assertion that the Russian Criminal Code only deals with victims after the event if they have been seriously injured or killed, which, as Dr Chenciner observed, is too late.[6]The legal member of the tribunal said he had read the Code, that that was not what it said and the determination then continued with the words:
"We consider that the nature of any crime is that it cannot be prosecuted until it has been committed."
[7]Mr Vylegzhanin was given permission to appeal to the Upper Tribunal on the basis that there might be an error of law in the legal member of the tribunal conducting his own research. The Upper Tribunal, however, concluded that there was nothing wrong in the legal member of the First-tier Tribunal reading the source of material, namely the Russian Criminal Code, for himself and deciding whether it said what the expert had said it said.[8]The Upper Tribunal therefore dismissed the appeal and there is now an application for permission to appeal. Mr Raphael Jesurum has made a spirited argument this morning to the effect that the legal member's reading of the Code on his own initiative vitiates the decision, because of the principles which have been laid down in relation to foreign law about the dangers of the tribunal doing its own research. He refers me to the 1863 case of Duchess Di Sora v Phillips (1863) 10 HL Cas 624 at page 640 where Lord Chelmsford said:
"...it seems contrary to the nature of the proof required in these cases, that the judge should be at liberty to search for himself into the sources of knowledge from which the witnesses have drawn, and produce for himself the fact which is required to be proved as a part of the case before him."
[9]Mr Jesurum submits that the applicant's representative had no opportunity to respond to the judge's reaction to his reading, and also that there was no sign that the reading of the Russian Criminal Code was shared with the second lay member of the First-tier Tribunal. He does not put it forward on the basis that there is any important point of principle or practice for a second appeal, but he says there is a compelling reason because of the procedural impropriety that he has relied on.[10]As I say, a very spirited argument, but I fear I cannot accept it. In the first place the passage complained of is only a very small part of a long judgment of the FTT which was basically, apart from saying how incredible the evidence of the applicant was, coming to the conclusion that there was a sufficiency of protection even for openly gay men in Russia. That is a judgment which seems to me to be otherwise unassailable. When one then considers that all the First-tier Tribunal Judge has done is to point out that the source of material did not contain the statement that Dr Chenciner said that it did, it seems to me that hardly amounts to conducting your own research in the sense used by Lord Chelmsford. The First-tier Tribunal judge had already decided that the expert report was unbalanced and therefore, to that extent, unreliable and this was no more than a part of the overall decision. It may well be the case, though the extent one can be sure about it is perhaps difficult, that the lay member did not for herself read the Russian criminal code, but the following sentence, which I have already cited, shows that the members of the tribunal discussed the matter together and came to their joint conclusion.[11]Mr Jesurum says finally, that if I were to accept that there had been procedural unfairness in some way it would be impossible to say that it would not have had any effect on the decision which might have been different if the impropriety had not occurred. Since I do not think there was any impropriety I do not have to grapple with that, but I think that is a very questionable proposition.[12]Vos LJ said this on the papers:
"The appeal focuses on a minute part of the FTT's reasoning which cannot by itself have played a major part in the lengthy and carefully reasoned decision. In any event, as the UT [Upper Tribunal] held, the FTT [First-tier Tribunal] judge did not 'conduct research' after the hearing. The FTT [judge] simply read the details of the papers as he was entitled to do, so as to understand the expert's apparently surprising view of the Russian Criminal Code."
Mr Jesurum says it is not simply the details of the papers because the Russian Criminal Code was not actually in the papers. All one can say is that if an expert purports to quote a provision of a code but does not provide the Code, it seems to be 'Alice in Wonderland' if the judge cannot read it for himself.[13]While inevitably one has sympathy for any gay man being deported to Russia, I fear I cannot give permission to him in this case.