Tulga Tsagaan v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,LORD JUSTICE CHADWICK,LORD JUSTICE MAY,Lord Justice Kennedy |
| Judgment Date | 12 October 2004 |
| Neutral Citation | [2004] EWCA Civ 1506 |
| Date | 12 October 2004 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C4/2004/0844 |
[2004] EWCA Civ 1506
IN THE SUPREME COURT OF JUDICATURE
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)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Kennedy
Lord Justice Chadwick
Lord Justice May
C4/2004/0844
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
This is an appeal from a decision of the Immigration Appeal Tribunal for which Lord Justice Sedley has granted leave. Since he did so the Secretary of State has accepted that the decision of the Immigration Appeal Tribunal should be set aside, and on 28 May 2004 a draft consent order was sent to the appellant, but the order provided for the matter to be remitted to a differently constituted Immigration Appeal Tribunal for re-determination. The appellant was not agreeable to that course. On his behalf it is contended that the decision of the Immigration Appeal Tribunal should be set aside, leaving the decision of the adjudicator to stand. So the matter has come before us.
Background
The appellant is a native of Mongolia. He was born on 19 June 1971, so he is now 33 years of age. On 9 March 2002 he entered the United Kingdom on a forged passport. On 21 March 2002 he claimed asylum by post. He was then interviewed, and his application was refused on 11 May 2002. He appealed to an adjudicator who gave her decision in his favour on 14 September 2002. The Secretary of State then appealed to the Immigration Appeal Tribunal which, on 29 December 2003, allowed his appeal. It is that decision which is now under appeal to this court.
Appellant's asylum claim
The appellant's claim for asylum is based on treatment which he says he suffered in Mongolia.
In August 2001 a woman entered his flat at about 8.00 am, saying that she was a friend of his neighbour. Soon afterwards she fell from the balcony of his flat and sustained fatal injuries. He claims not to have known her name or why she fell. He was suspected of murder and was arrested, tried, convicted and sentenced to 8 years' imprisonment. He was in police custody for two days after his initial arrest on 24 August 2001 and thereafter he was in prison. He says that he was subjected to violence whilst in police custody but that he did not admit guilt, either then or later. He asserts that he was only convicted because under Mongolian law there was no presumption of innocence. He was in the flat from which the deceased fell and could not explain her fall, and that, he says, was sufficient, but he did lodge an appeal.
He remained in prison from two days after his arrest until March 2002. Within that period he says that he was moved from cell to cell and was subjected to degrading and inhuman treatment by other prisoners and by prison guards. He was beaten and forced to drink urine and eat faeces, and eventually he developed kidney problems. He suspected that he was subjected to ill treatment because, although he had been convicted, the investigating officer wanted him to confess, and asked long serving prisoners to get the confession.
When he became ill he was transferred to hospital. He was then able to escape by climbing out of a window. He travelled by way of Ulan Bator and Russia to the United Kingdom. When he left Mongolia his appeal had yet to be heard and that may still be the position.
Before the Adjudicator
When his appeal against the decision of the Secretary of State came before the adjudicator his representative conceded that he could not establish his claim for political asylum. But he prayed in aid—
(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.
Applying a low standard of proof applicable in human rights appeals against removal, the adjudicator found the appellant to be a credible witness. She therefore accepted the core of his account. As to the treatment in prison, she said:
"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.
The adjudicator's conclusion, as I understand it, was that if he were to be returned he would be subjected to treatment amounting to a contravention of Article 3, and the return would violate Article 6 (2) because his guilt and imprisonment is founded on the denial of a presumption of innocence. At paragraph 43 the adjudicator said:
"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."
There was no medical evidence before the adjudicator. She said (at paragraph 45) that her findings "only just crossed the real risk or reasonable likelihood threshold", but because they crossed it she allowed the appeal on human rights grounds.
Before the IAT
The Immigration Appeal Tribunal was troubled by the adjudicator's apparent acceptance that the absence of a presumption of innocence was critical. Her approach apparently was that other safeguards were irrelevant, so if a legal system did not presume innocence a convicted prisoner could not be returned. That was said to be inconsistent with the decision of this court in R (Ullah) v Special Adjudicator [2003] 1 WLR 770.
As to the prospect of ill treatment on return, the Immigration Appeal Tribunal noted that the treatment allegedly inflicted by other prisoners came from non-state actors and therefore raised the question of whether there was effective protection by the State. As to documentary material, it said:
"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...
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...whether the case should be remitted to the IAT or the Adjudicator, Mr. Kovats relied on the decision of this Court in Tsagaan v Secretary of State for the Home Department [2004] EWCA Civ 1506. When Mr. Kovats made his submissions to us, the transcript of the judgment in that case was not ye......
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