Upper Tribunal (Immigration and asylum chamber), 2008-10-13, [2008] UKAIT 76 (SH (prison conditions))
| Jurisdiction | UK Non-devolved |
| Judge | Dr HH Storey, Mr A L McGeachy, Mr H G Jones |
| Status | Reported |
| Date | 13 October 2008 |
| Published date | 15 October 2008 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 30 June 2008 |
| Subject Matter | prison conditions |
| Appeal Number | [2008] UKAIT 76 |
Asylum and Immigration Tribunal
SH (prison conditions) Bangladesh CG [2008] UKAIT 00076
THE IMMIGRATION ACTS
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Heard at Field House |
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On 30 June 2008 |
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Before
SENIOR Immigration Judge STOREY
SENIOR IMMIGRATION JUDGE McGEACHY
MR H G JONES, MBE, JP
Between
SH
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the appellant: Mr S Jaisri of Counsel instructed by Dexter Montague & Partners
For the respondent: Ms R Brown, Home Office Presenting Officer
1. Prison conditions in Bangladesh, at least for ordinary prisoners, do not violate Article 3 ECHR.
2. This conclusion does not mean that an individual who faces prison on return to Bangladesh can never succeed in showing a violation of Article 3 in the particular circumstances of his case. The individual facts of each case should be considered to determine whether detention will cause a particular individual in his particular circumstances to suffer treatment contrary to Article 3.
3. In view of the significant changes in Bangladesh politics in recent years, AA(Bihari-Camps) Bangladesh CG [2002] UKIAT 01995, H (Fair Trial) Bangladesh CG [2002] UKIAT 05410 and GA (Risk-Bihari) Bangladesh CG [2002] UKIAT 05810 are now removed from the list of AIT country guidance cases.
DETERMINATION AND REASONS
1. The appellant is a national of Bangladesh born on 19 October 1977. He entered the United Kingdom illegally on 14 May 1998 and claimed asylum. The basis of his claim was that he feared return to Bangladesh because of his involvement with the Bangladesh National Party (BNP) which had led to members of the rival Awami League laying false charges against him and other BNP members. One set of charges related to a fight between BNP and Awami League supporters which had taken place in June 1996. He had left Bangladesh in April 1998 but in August 1998 had been convicted in absentia and sentenced to seven years imprisonment in respect of these charges. The second set of charges related to a similar fracas in September or October of 1997; however these had been dismissed or discontinued before he left Bangladesh. The appellant said that the police had been searching for him in order to arrest him, that he considered the charges against him had been politically motivated and that upon return he would be arrested and forced to serve his seven years jail sentence even though the charges against him were false.
2. On 9 April 2000 the respondent decided to remove the appellant as an illegal entrant and certified his claim. On 28 January 2003 an Adjudicator, Mr Blandy (hereafter “the first Adjudicator”), dismissed his appeal and upheld the certificate. There was no further appeal. The appellant then made a human rights claim. On 12 March 2004 the respondent issued a human rights refusal letter. The appellant’s appeal against that refusal was dismissed by an Adjudicator, Mrs F M Kempton (hereafter “the second Adjudicator”), on 14 September 2004. Permission to appeal was granted by the Immigration Appeal Tribunal on 25 February 2005. By reason of the changes in the appellate regime, the matter came before the Asylum and Immigration Tribunal as a reconsideration. In a determination notified on 22 June 2006 a panel comprising Immigration Judge Grimmett, Mr M E A Innes and Mrs A J F Cross de Chavannes decided that the second Adjudicator had not materially erred in law. Subsequently, however, a Senior Immigration Judge granted permission to appeal to the Court of Appeal. That resulted in a Consent Order dated 2 January 2007. The accompanying Statement of Reasons accepted that the second Adjudicator (Mrs Kempton) had failed to give any reasons for her conclusion that the appellant would not be imprisoned in Bangladesh and that the Tribunal was “obliged to consider prison conditions in Bangladesh in the context of Article 3 of the ECHR and determine whether it would be a breach of the United Kingdom’s obligations under that article to return the appellant” (para 4). At para 5 of this Statement it was said that:
“…it is agreed that…the AIT will have to conduct an assessment, including a consideration of any relevant country guidance decisions, of whether the prison conditions in which the Appellant would be placed would give rise to a risk of Article 3 ill-treatment, should it find on reconsideration that there is a relevant risk of the Appellant’s imprisonment on return to Bangladesh.”
3. Although there is a tension between para 4 and the conditional form of paragraph 5 of this Statement, the parties agreed with us that essentially we were to conduct a second-stage reconsideration confined to two issues: (1) whether there was a real risk that upon return to Bangladesh the appellant would be imprisoned as someone who had been convicted in his absence and sentenced to seven years imprisonment; and (2) whether his imprisonment would expose him to conditions contrary to Article 3 of the ECHR. (Strictly speaking we also need to consider whether his imprisonment would expose him to conditions which would amount to serious harm and so qualify the appellant for humanitarian protection under para 339C of HC395 as amended; but, even leaving aside the issue of whether if accepted as a mere fugitive from justice he would be subject to the exclusion provisions of para 339D in any event, para 339C(iii) is based directly on Article 3 of the ECHR and we consider that our answer, at least to the question of whether the appellant meets the requirements of this subparagraph, stands or falls with our answer to the Article 3 question. )
4. The parties also agreed with us that we should take as our starting-point the findings of fact of the first Adjudicator, in accordance with Devaseelan [2003] Imm AR 1 principles. The first Adjudicator (whose decision was not the subject of an appeal) accepted that the appellant was a member of the Bangladesh National Party (BNP), was involved in student politics and was against the Awami League. He was not satisfied that the appellant had been persecuted by the Awami League and considered that in any event there would be no risk to the appellant from that group now as the BNP were (at the point in time of his hearing of the case) in power in Bangladesh. He did not accept that the police investigation or the criminal court proceedings against the Appellant were politically motivated. However, he did accept that the documents in the appellant’s case were genuine. At para 6.4 he stated:
“I accept that the documents relating to the Applicant’s involvement in the first case are genuine. It is quite clear that evidence has been considered by the court in Bangladesh and I am not prepared to accept the Applicant’s account of what happened at face value. I do not find it credible that if he had genuinely being the victim of an attack by the Awami League supporters that he would have been convicted and sentenced to seven years imprisonment. It appears to me to be likely that the Applicant left Bangladesh when it became clear to him that the outcome of the case was going to result in a term of imprisonment. He is quite clearly simply fleeing justice. He conceded at the conclusion of his cross-examination that the only reason he had left Bangladesh was to avoid serving the sentence of imprisonment.”
5. As was noted in previous proceedings, the above passage is not crystal clear. The second sentence taken on its own could be read as a rejection of the appellant’s claim that he had been convicted and sentenced to seven years’ imprisonment. However, the parties are agreed (the respondent crucially) that read as a whole the Adjudicator’s determination shows an acceptance of the fact that the appellant was convicted and sentenced to seven years’ imprisonment on the basis of the particulars set out in the documents he submitted. Both parties were also agreed that whether or not either or both the first and second Adjudicator should be considered as having addressed the issue of prison conditions correctly in law, that issue was now entirely one for us, applying the law correctly and examining the facts relating to prison conditions in Bangladesh currently.
The background evidence
6. We list the background materials that were before us in a separate Appendix, but note that these included the COIS Report of 31 August 2007, the OGN for December 2007, the Human Rights Watch report for January 2008, the Amnesty International Report for 2008 and the US State Department Report dated 11 March 2008.
The expert’s reports
7. The evidence for this case also included two reports from an expert, Professor Andrew Coyle dated May 2007 and June 2008 respectively. Mr Coyle is Professor of Prison Studies in the International Centre for Prison Studies, King’s College, University of London. A former prison governor, he acts frequently as an adviser on prison issues to intergovernmental bodies such as the UN and the Council of Europe. He has visited and advised on prison systems in over 50 countries in all regions of the world. He has published widely on prison and criminal justice issues. Although he has visited prison systems in several countries in South Asia he has not...
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