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United Kingdom Asylum and Immigration Tribunal
You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> Secretary of State for the Home Department v B (Mongolia)  UKIAT 00067 (08 April 2004)
Cite as:  UKIAT 67,  UKIAT 00067
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APPEAL No.  UKIAT 00067 B (Mongolia)
Date of hearing: 16 March 2004
Date Determination notified: 08 April 2004
|Secretary of State for the Home Department||APPELLANT|
"The Mongolia Criminal Law states that if a person leaves or enters Mongolia illegally then that person can be sentenced to imprisonment for up to five years. I am therefore afraid that both my husband and myself will be arrested and put in prison as we used illegal travel documents to leave the country."
"We also left Mongolia illegally. If we are returned we will be asked for a passport or travel documents. When we are unable to produce them we will be detained. The Mongolian Criminal Code states that the offence of illegal entry is punishable by up to five years in prison."
"Both the appellant and her husband point out that Mongolian criminal law contains a penalty of five years imprisonment for crossing the border illegally (paragraphs 18 and 21 respectively). The new Mongolian Criminal Code, chapter 5, paragraphs 89.2, says that this penalty applies for repeated or premeditated actions (but is not applicable to foreigners seeking refuge)."
"On the evidence before me I accept that the appellant and her husband left Mongolia illegally. I further note that Mr A. J. K. Sanders, the expert witness called on behalf of the appellant, states that the Mongolian criminal code contains a penalty of five years imprisonment for crossing the border illegally. I find that there are substantial grounds for believing that if returned to Mongolia now there is a real risk that the appellant and her husband would be imprisoned for up to five years for leaving Mongolia illegally. I further find that the prison conditions in which the appellant and her husband would be imprisoned are life-threatening, because of insufficient food, heat and health care. Further tuberculosis is endemic in Mongolian prisons and detention centres. In these circumstances to return the appellant and her husband to Mongolia now, where it is reasonably likely they would be subject to a long term of imprisonment, would be to breach the protected rights of the appellant and her husband under Article 3 of the ECHR. Such imprisonment would constitute inhuman or degrading treatment or punishment of the appellant and also her husband. The life-threatening nature of prison conditions in Mongolia is confirmed by the US State Department Report dated 31 March 2003 on page 45 of the appellant's bundle."
"Article 89 Crossing of the Mongolian border illegally
89.1. The punishment for having crossed the Mongolia border illegally is a fine of 90 to 250 times the minimum wage or imprisonment from three to six months.
89.2 If the offence is repeated or premeditated the punishment is imprisonment for up to five years.
[A Note adds that this does not apply to foreigners seeking refuge.]"
Helpfully, he also sets out Article 22, although this is not strictly material since this Article was not mentioned before the adjudicator whose determination was confined to the risk arising from Article 89, the illegal crossing of the Mongolian border.
We only need refer to the following sub-articles:
Persons whose acts violate the following regulations for crossing the state border are called border violators:2. Persons who cross or are preparing to cross the state border at a designated crossing point with documents which are not valid for crossing the border.
(The Tribunal infers that border violators are subject to penalties, although we are not told what they are.)
Decision: The Secretary of State's appeal is allowed.
Date: 17 March 2004