Upper Tribunal (Immigration and asylum chamber), 2021-09-16, [2021] UKUT 321 (IAC) (R (on the application of Gornovskiy) v SSHD (Extradition and immigration powers))
| Jurisdiction | UK Non-devolved |
| Judge | UPPER TRIBUNAL JUDGE BLUNDELL |
| Status | Reported |
| Date | 16 September 2021 |
| Published date | 20 December 2021 |
| Hearing Date | 23 June 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Extradition and immigration powers |
| Appeal Number | [2021] UKUT 321 (IAC) |
R (on the application of Gornovskiy) v Secretary of State for the Home Department (Extradition and immigration powers) [2021] UKUT 00321 (IAC)
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
16 September 2021
Before:
UPPER TRIBUNAL JUDGE BLUNDELL
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Between:
THE QUEEN
on the application of
NIKOLAY GORNOVSKIY
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Ben Keith
(instructed by Karen Todner Limited), for the applicant
Julie Anderson
(instructed by the Government Legal Department) for the respondent
Hearing date: 23 June 2021
Written submissions received: 11 and 18 August 2021
In considering the period of leave to remain which is to be granted to a person (P) who is subject to the Restricted Leave regime, the Secretary of State is required to consider, amongst other matters, the forseeability of P’s removal from the United Kingdom. In considering that question, the fact that P has been discharged from extradition proceedings under the Extradition Act 2003 does not, of itself, prevent the Secretary of State from removing P from the United Kingdom in the exercise of the powers conferred by the Immigration Acts.
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J U D G M E N T
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Judge Blundell:
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The applicant is a Russian national who was born on 8 January 1958. He applies for judicial review of the respondent’s decision to grant him Restricted Leave for twelve months. The decision was made on 7 July 2020, in response to an application for Indefinite Leave to Remain.
Background
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The applicant arrived in the UK as a visitor, on 7 August 2003. He was subsequently granted leave to remain as a work permit holder. Upon the expiry of that leave, in 2008, he claimed asylum.
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In his claim for international protection, the applicant stated that he had risen to a senior position in the Russian gas industry with the assistance of his friend Nikolay Egorov. Mr Egorov is said to be closely connected to Vladimir Putin. The applicant stated that he had been responsible for siphoning money from his company (Mezhregiongaz), both for his own benefit and for the benefit of others, including Mr Putin. He had subsequently fallen out of favour with the regime and an Interpol Red Notice was issued for his arrest in connection with financial matters.
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The applicant’s claim for asylum was refused on the basis that he was excluded from the protection of the Refugee Convention under Article 1F(b) (i.e., that there were serious reasons for considering that he had committed a serious, non-political crime before his entry to the UK). He was nevertheless granted six months’ Discretionary Leave on 10 November 2008. The respondent made the latter decision because it was accepted that the applicant could not be removed from the UK on Article 3 ECHR grounds.
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The applicant sought ILR as a work permit holder in December 2008. The application was refused on character and conduct grounds in January 2009. The applicant then appealed to the Asylum and Immigration Tribunal against the asylum decision, contending that he was entitled to the protection of the Refugee Convention.
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The appeal was heard at Taylor House by a panel comprising Senior Immigration Judge Nichols (as she then was) and Immigration Judge Tipping. The applicant was represented by leading and junior counsel. The respondent was also represented by counsel. The panel heard evidence from the applicant and from Professor Goodwin-Gill on the international interpretation of Article 1F(b) of the Refugee Convention.
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The AIT’s decision was issued on 10 July 2009. It is a lengthy and closely-reasoned document, running to 75 paragraphs over 28 pages. I need summarise only the essential conclusions. It was agreed between the parties that the only issue was whether the applicant was ‘properly excludable under Article 1F(b)’: [4]. The applicant had admitted to the embezzlement of substantial funds from a company of which he was the Chief Executive Officer: [11] and [62]. It was this conduct which led the respondent to conclude that the applicant should be excluded from the Convention on the basis that he had committed a serious non-political crime outside the country of refuge prior to his admission thereto. The AIT rejected Professor Goodwin-Gill’s evidence that the applicant’s crimes were neither ‘serious’ nor ‘non-political’ for the purposes of Article 1F(b), as that provision is applied internationally: [64] and [74]. In the circumstances, the appeal was dismissed on the basis that the applicant was properly excluded from the protection of the Refugee Convention: [75].
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On appeal to the Upper Tribunal (Judges Latter and Eshun), there was no challenge to the finding that the crimes were serious. It was submitted that the AIT had erred in law in concluding that the crimes were non-political. The Upper Tribunal rejected that submission, holding that the AIT had been entitled to draw the inference it had drawn from the evidence before it; that it had applied the burden and standard of proof correctly; and that the applicant’s crimes could not be classified as political: [36], [37] and [42].
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There was no appeal to the Court of Appeal against the Upper Tribunal’s decision.
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The applicant was granted another six months’ Discretionary Leave on 23 May 2011. The respondent then introduced Restricted Leave (“RL”) and the applicant received periods of six months’ RL on 14 September 2012, 11 April 2013, 9 September 2014 (following the refusal of a second application for Indefinite Leave to Remain), 21 April 2015, 13 November 2015, 17 January 2017 and 18 October 2018. He sought to appeal against the latter decision but the appeal was struck out by the FtT.
The Application for Further Leave or ILR
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On 28 April 2019, the applicant made an application for further leave to remain, submitting that he should be granted either Indefinite Leave to Remain (“ILR”) or a longer period of RL. Further documents, including a lengthy witness statement from the applicant and an expert report from John Lough, were subsequently provided in support of the application. The witness statement explained the context of the applicant’s criminality in detail. It also described the attempts made by the Russian Federation to extradite him, first from Germany and then from the UK.
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The expert report of John Lough is also a substantial document, running to 38 pages. There has never been any suggestion that Mr Lough lacked the qualifications or experience to opine on the applicant’s situation. He is, amongst other things, an Associate Fellow with the Russia and Eurasia Programme at Chatham House and is clearly knowledgeable about Russia. Mr Lough had been asked to consider nine questions, all of which concerned the background to the Russian regime’s antipathy towards the applicant and the likely treatment of him were he to return to Russia. Mr Lough charted the applicant’s rise and fall in some detail, including reference to the fact that his name had been published by the Russian Embassy in a 2017 press release entitled ‘Why are Fugitives from Justice Welcome in the UK?’
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Mr Lough also considered the cases of several individuals who were sought by the Russian state in connection with similar crimes or alleged crimes. Mr Lough described how the ‘Putin-led system is not just corrupt. It runs on corruption.’: [77]. He stated that estimates of the President’s wealth varied from US$40 billion to $200 billion and that the Russian economy had ‘been transformed into a feudal system where businessmen are ‘serfs who belong to Putin’’: [83]. Mr Lough opined that the criminal proceedings against the applicant were political and that he could not possibly expect to receive a fair trial: [87]-[89] and [90]-[96]. There was a risk of torture in pre-trial detention: [97]-[98].
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In the closing paragraphs of the report, there is a section which appears under the sub-heading “Has the political or factual situation in Russia changed since the original grant of limited leave to remain in 2009?”. It is necessary to reproduce the two paragraphs of that section in full:
[99] The years since 2009 have seen a significant retrenchment of the regime in Russia and a marked slide towards a more authoritarian and repressive state. The power of the FSB, the PGO and the law enforcement agencies has increased in order to narrow the space for dissent and civic unrest. As noted above, the authorities were deeply concerned by the protests of 2001 and 2012. They dealt with these robustly by jailing demonstrators and signalling to academics, artists, human rights activities and opposition politicians that they must take care not to step out of line. Business has long since been cowed and has felt the changes less than other sections of society.
[100] The regime is clearly nervous about its future. The...
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