Upper Tribunal (Immigration and asylum chamber), 2005-04-20, [2005] UKIAT 95 (IB (Propiska, Update and corruption))
| Jurisdiction | UK Non-devolved |
| Judge | Mr P R Moulden, Mr R Hamilton, Mr R A McKee |
| Status | Reported |
| Date | 20 April 2005 |
| Published date | 28 April 2005 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 15 February 2005 |
| Subject Matter | Propiska, Update and corruption |
| Appeal Number | [2005] UKIAT 95 |
IB (Propiska-update and corruption) Ukraine UKIAT 00095
IMMIGRATION APPEAL TRIBUNAL
Heard at : Field House
On : 15th February 2005
Prepared : 18th February 2005
Determination notified :
20th April 2005
Before :
Mr P.R. Moulden (Vice-President)
Mr R.A. McKee
Mr R. Hamilton
Between :
Secretary of State for the Home Department
Appellant
And
Respondent
Representation :
For the appellant : Miss K. Pal, Home Office Presenting Officer
For the respondent : Mr Peter Jorro of counsel, instructed by O’Keeffe Solicitors
DETERMINATION AND REASONS
1. The Secretary of State appeals, with leave granted as long ago as 11th February 2003, against the determination of an adjudicator, Mr B.S. Grewal, promulgated on 18th December 2002, allowing the appeal of the respondent (hereafter referred to as ‘the claimant’) against the refusal on 16th May 2001 to vary his leave to remain in the United Kingdom, consequent upon the refusal of his asylum application.
2. As we indicated at the outset of the hearing before us, it was not altogether clear what the decision was against which the claimant had appealed to an adjudicator. What appears to have happened is that the refusal to vary leave was not communicated to the claimant by his then solicitors, and that he did not get to hear about it until he was detained a year later at Haslar Holding Centre. His new solicitors, Duncan Lewis & Co., then lodged an appeal out of time on 25th July 2002, with an explanation for its lateness. The Home Office could either have treated the appeal as having been given in time, or have made an ‘out of time’ allegation to the Appellate Authorities, who would have dealt with the matter as a Preliminary Issue under the Procedure Rules 2000. The Home Office in fact did neither of those things, but instead issued a notice on 2nd August 2002 telling the claimant that he was now an overstayer, and that directions had been given for his removal to the Ukraine, the country of his nationality.
3. It seemed to us that, by skipping one stage in the process, the Home Office had purported to deny the claimant an opportunity of having his appeal heard under s.69(2) of the 1999 Act, leaving him instead with an appeal under s.69(5). But the claimant could not have given notice of appeal on 25th July 2002 against a decision which was not taken until 2nd August 2002. Miss Pal took instructions on the matter, and helpfully withdrew the notice of removal issued on 2nd August 2002, accepting the late notice of appeal against the refusal to vary the claimant’s leave, as decided on 16th May 2001.
4. The claimant in fact arrived here as a visitor as long ago as December 1996, and waited for four and a half years before a decision was taken on his asylum claim. As well as being refused, the claim was also certified under the Immigration and Asylum Act 1999 as disclosing no ‘Convention reason’. The adjudicator, however, did not agree with the certificate, and believed the claimant’s account in its entirety.
5. In brief, his account was that he was growing vegetables on what had been a state-run collective farm. The chairman of the collective demanded bribes for letting the claimant continue with his work, and when the claimant reported this to the authorities, they all ganged up against him. The town mayor turned out to be a personal friend of the farm chairman, the court procrastinated and eventually threw out his case, the GAI traffic police even stopped the claimant in the road and prevented him from taking his vegetables to market. The farm boss called in the mafia to ‘put the frighteners’ on the claimant, and make him pay up the money which he was said to owe. The claimant was beaten so badly that his ribs were broken, but the man who was holding the documentary evidence which the claimant and other tenants on the farm had got together to incriminate the farm boss fared even worse. He was murdered, and his house was burned down. The police, who were in cahoots with the mafia and the farm boss, did nothing.
6. This was how the adjudicator saw it. “I am firmly of the view that the persons harassing and intimidating the appellant and who were making it impossible for him to earn a livelihood were colluding with the authorities and in fact were agents of persecution. Having perused the objective evidence I have concluded that the appellant had a well-founded fear of persecution by state and non-state agents, the police, the Mafia and the Ukrainian government. The appellant was expected to bribe the landlord and when the appellant complained to the court the result was that his land was taken away and he was prevented from earning a living as the market road was blocked. The chairman of the collective farm used his links with the Mafia to threaten and intimidate the appellant. The appellant sought the help of the militia and the mayor of the town. The appellant went to the courts but as there was obviously a link between the court, the police and the Mafia there appeared (sic) that the case was closed. Eventually the appellant started collecting evidence and take (sic) the case to the regional Adjudicator but his evidence was destroyed when the person who was retaining the evidence was killed and his house was burnt down.”
7. The adjudicator found the claimant to be a credible and reliable witness who was telling the truth. The cumulative effect of the ill-treatment he had suffered amounted to persecution, against which there was “total absence of sufficiency of protection”, and the Convention reason was ‘imputed political opinion’. The adjudicator noted from the CIPU Assessment for October 2002 which was before him that “since independence, the level of organised crime and corruption in the Ukraine has risen sharply,” there being “a close working relationship between corrupt officials and organised crime.” After citing copious examples of this from the background evidence, the adjudicator went on to find that the claimant would still face a real risk of persecution or Article 3 ill-treatment on return.
8. The Grounds of Appeal to the Tribunal do not contest the adjudicator’s credibility findings. Instead, they contend :
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that after such a long absence from the Ukraine, his former persecutors would no longer “have an issue” with the claimant ;
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that no political opinion would have been imputed to him ;
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that the adjudicator had not considered internal flight ; and
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that the adjudicator had not taken account of the fact, noted in the refusal letter, that the claimant had left the Ukraine through the normal channels with a properly-issued passport, which showed that the authorities had no adverse interest in him.
9. The Vice-President, who granted leave to appeal on all four grounds, was particularly impressed with grounds (1) and (4). At the hearing, however, Miss Pal did not rely on grounds (2) and (4), and based the Secretary of State’s appeal on the effluxion of time since the claimant left the Ukraine in December 1996, and the feasibility of an ‘internal flight option’ to a different part of the country from his own Donetsk region.
10. That neither of these would avail the claimant on return to the Ukraine was the expert opinion of Dr Robert Chenciner, who has provided two expert’s reports, the first dated 8th January 2004, the second completed on 12th February 2005, just before the hearing. Dr Chenciner also gave oral evidence before us, in which he repeated the gist of his reports in-chief, and defended his views in cross-examination. A senior associate member of St Anthony’s College, Oxford, and an honorary member of the Russian Academy of Sciences, Dr Chenciner has first-hand knowledge of the Caucasus region, and has been an OECD election observer in Russia, Kazakhstan and Belarus, in which countries he has become familiar with the propiska system inherited from the Soviet Union, and its relationship to the electoral register. He has not himself been to the Ukraine, but is familiar with the problem of corruption...
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