AP (Return)

JurisdictionEngland & Wales
CourtImmigration Appeals Tribunal
JudgeMR J BARNES,VICE PRESIDENT
Judgment Date11 July 2002
Neutral Citation[2002] UKIAT 2544
Date11 July 2002
Docket NumberAppeal No: HX/64238-2000

[2002] UKIAT 2544

IMMIGRATION APPEAL TRIBUNAL

Before:

Mr J Barnes (Vice President)

Mr M W Rapinet

Mr P Rogers JP

Appeal No: HX/64238-2000

Between:
Secretary of State for the Home Department
Appellant
and
Andrei Pavlov
Respondent
Representation:

Mr J Jones, Home Office Presenting Office for the Appellant

Mr S Symonds, representative for Refugee Legal Centre (London) for the Respondent

AP (Return) Estonia CG

DETERMINATION AND REASONS
1

The Respondent was born on 18 th August 1969 at Bryansk in the former Union of Soviet Socialist Republic and is of Russian ethnicity. In 1975 when he was five or six years of age, his parents moved to that part of the former USSR which subsequently became the Republic of Estonia on the break up of the USSR. His last place of residence was in Tallinn in Estonia, where he was the holder of an Estonian Alien's passport and a limited residence permit, both of which expired on 2 nd June 2000. The Respondent had obtained entry clearance to come to the United Kingdom as a visitor and he arrived here on 17 th October 1999. There was formally some issue as to whether or not he had entered illegally, but that matter was resolved in the Respondent's favour by the Adjudicator and it is, in any event, accepted that he formally applied for asylum here on 18 th October 1999.

2

Following submission of a completed self evidence form and a later interview, the Appellant, the Secretary of State, refused his asylum application for the reasons set out in a letter dated 26 th October 2000, and on 31 st October 2000 issued directions for his removal to Estonia as an illegal entrant following refusal of the asylum application.

3

The Respondent appealed against that decision on both asylum and human rights grounds. His appeal was heard on 12 th February 2001 by an Adjudicator, Mr P V Ievins, who found that the Respondent had no current well-founded fear of persecution for a Convention reason in Estonia, but then went on to consider the question of returnability to Estonia and to allow the appeal for the reasons set out at paragraphs 24 and 25 of his determination, which read as follows:

“24. But there is a separate question, his returnability to Estonia. It is agreed by both sides that the Appellant holds an Estonian Alien's passport which has now expired. The fax from the Estonian Embassy of 5 th February 2001 with the Appellant's papers, and the Respondent's CIPU assessment at paragraph 6.13 agree that Estonians with Alien passports, who remain abroad for more than 183 days, will lose their residence permits. According to the CIPU assessment, such persons would be accepted back quietly and informally into Estonia as long as they could prove they had always lived in Estonia before departure from the United Kingdom. This Appellant has lived in Estonia since childhood and it is likely he could establish that Estonia was his country of habitual residence. But according to the Estonian Embassy, that is not the official position.Not all the temporary residence permit applications meet a positive reply. There is an immigration quota in Estonia, a number that is set by the government in the beginning of each year”. A proof of family ties is said to be helpful. The Respondent says that the Appellant would be quietly and informally allowed back to Estonia if returned. The Appellant says he has no right of return and his application for a residence permit would not necessarily be successful.

25. Would the Appellant be allowed back into Estonia if he was returned there? Estonian law says he has no right to return. He would have to apply for a residence permit and his application would not necessarily be granted. The Home Office say that he would be quietly and informally let back in. I prefer the legal position to what is thought to be the informal position. The Respondent has failed to show that, on the balance of probabilities, the Appellant would be allowed back into Estonia if he were to be returned there. Although if he were to return to Estonia he would not face a serious possibility of persecution for a Convention reason, this appeal is allowed.”

The Adjudicator then said that as he had allowed the appeal, under the Refugee Convention it was not necessary to consider whether return would also lead to a breach of United Kingdom's obligation's under the Human Rights Convention.

4

The Appellant sought leave to appeal against that decision on the following grounds:

  • “(i) Adjudicator found that Appellant did not have a well-founded fear of being persecuted when returned to Estonia, but he nevertheless granted him refugee status due to him being stateless.

  • (ii) Notwithstanding some conditions attached to the Estonian Alien's passport, there is evidence that once the Appellant can show that he has lived in Estonia all his life, he would be accepted back into the country. Appellant has both his parents living in Estonia and has been living in Estonia since he was five years old.

  • (iii) Adjudicator also erred in law by not following the principles laid down in Ivanov (R12583), Tikhnonov G0052 [1998] INLR 737 and Smith (02130).

5

Leave to appeal was granted by a Vice President, who added that the Tribunal might also wish to consider whether the claimed non-returnability of the Respondent to Estonia would be any basis, if the finding on that were upheld, for a conclusion that his return there would be contrary either to the Refugee Convention or the European Convention on Human Rights.

6

This appeal first came before us on 21 st June 2001, when with all respect to the Adjudicator, we indicated that it was our preliminary appeal, subject to argument, that the Adjudicator had erred in law in his approach and that the real issue was whether, as a stateless person, the Respondent's treatment if returned to Estonia would amount to persecution either by reason of his Russian racial or ethnic origin, or to a breach of his human rights. A similar issue was at that time being dealt with by another division of the Tribunal where the appeal had been heard a few days previously and promulgation of that determination was awaited. Both parties sought an adjournment in those circumstances, pending its promulgation and we agreed that this was the sensible course, during that both parties should submit written skeleton submissions to be dealt with at the adjourned hearing. For administrative reasons, this appeal was not re-listed before us until today but we have, in the meantime, had the benefit of the written skeleton submissions referred to, for which we are indebted to both parties.

7

It was accepted by both parties that the Adjudicator's decision was fundamentally flawed and could not stand since, absent any problems as to his status in Estonia were he to be re-admitted, it was accepted that there was otherwise no factual basis on which he would be reasonably be likely to be persecuted or to suffer treatment in breach of the absolute terms of Article 3 of the European Convention on Human Rights.

8

The Tribunal decision to which we have referred above was that in Sensitev v SSHD (01/TH/1351) where a similar situation had been considered. Mr Sensitev had been born in Latvia but had lived for a considerable period in Estonia before seeking asylum in the United Kingdom, and there was no evidence to suggest that he was currently a citizen of any other country. The appeal proceeded on the basis that he was a stateless person, whose country of former habitual residence was Estonia, and that the appeal could not succeed unless he could show that he faced a well-founded fear of persecution in Estonia. Mr Sensitev arrived in the United Kingdom on an Estonian Alien's passport, which expired in August 1998, just over four months after his arrival, and also had a temporary residence permit which expired at the same time as his Alien's passport. It had been found that there was no well-founded fear of persecution for a Convention reason, subject to the issues then being considered, on the basis of Mr Sensitev's personal history and the only essential difference between his position and that of the present Respondent was that the removal directions predated the coming into force of the Immigration and Asylum Act 1999 on 2 nd October 2000 so that the issue of any potential breach of his human rights did not arise in that case. The Tribunal noted that under the 1993 Estonian Alien's Act at paragraph 14, provided that a residence permit or work permit expired, irrespective of any specific date of expiry expressed in it, where an alien stayed outside Estonia for more than a total of 183 days in a year and had failed to register his absence under the conditions and pursuant to the procedures established by the Estonian government. Unsurprisingly, as in the present appeal, Mr Sensitev had failed to register his absence since, like the present Respondent, his purpose in being in the United Kingdom was to acquire refugee status.

9

The Tribunal then proceeded at paragraph 21 of the determination to make certain findings which, since they are equally applicable to the present appeal, we adopt and now set out:

  • “1) That by virtue of having remained outside Estonia for more than 183 days without having registered his absence with the Estonian Embassy in London, this Appellant's temporary residence permit has expired and cannot be extended;

  • 2) That even if his expired Estonian Alien's passport were current, such a passport does not guarantee a right to right [we assume this is an error for a reference to a right to a residence permit] in the absence of a specific authorisation placed in the passport;

  • 3) That in order to obtain here a new or renewed temporary residence permit, the Appellant would need to apply to the Estonian Embassy in London;

  • 4) That despite not having needed a work permit during his previous years in Estonia he may, in order to be...

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