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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Tsagaan v Secretary of State for the Home Department [2004] EWCA Civ 1506 (12 October 2004) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2004/1506.html Cite as: [2004] EWCA Civ 1506 |
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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)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE CHADWICK
LORD JUSTICE MAY
____________________
TULGA ![]() |
Claimant/Appellant | |
-v- | ||
SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendant/Respondent |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR ABID MAHMOOD (instructed by Johar & Co of Leicester) appeared on behalf of the Appellant
MR PAUL BROWN (instructed by Treasury Solicitor) appeared on behalf of the Respondent
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Crown Copyright ©
Background
Appellant's asylum claim
Before the Adjudicator
(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.
"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.
"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."
Before the IAT
"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.
"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
Attempt to Compromise
(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
(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.
(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.
Conclusion
(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.
Order: Appeal allowed with the costs of appellant to be subject to detailed assessment. Matter to be remitted to IAT