The appellant arrived in this country and on 7 August 2001 claimed asylum in accordance with the Geneva Convention. He also claimed the protection of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Both applications were refused by the Secretary of State on 15 October 2001. His appeal was dismissed by the Adjudicator (Mr Thomas Ward) on 21 June 2002. A further appeal to the Immigration Appeal Tribunal (Chairman: Mr N H Goldstein) was dismissed on 7 February 2003. His application dated 17 February 2003 for permission to appeal to this court was refused by the Tribunal (The Vice President: Dr H H Storey) on 24 February 2003. He applied to this court on 5 March 2003 for permission to appeal. Limited permission to appeal was granted by my Lord, Lord Justice Sedley, on 16 April 2003.

The appellant is a citizen of the Russian Federation. He is of Tuvan (Mongolian) ethnic origin. His claim to asylum was based on his fear of persecution by the Russian authorities on account of his non–Russian ethnic origin and the inevitability of imprisonment both for “draft” evasion caused by his unwillingness to participate in military action in Chechnya and for illegal drug dealing – the appellant’s case was that he was not a drug dealer in the ordinary sense but someone who, albeit illegally, was selling medicines to Chechens, in part at least for humanitarian reasons. The appellant had in fact been imprisoned but managed to escape and made his way to this country.

So far as concerns the appellant’s claim to the protection of the Geneva Convention it turned on whether what he faced on return to Russia was persecution or only prosecution. In granting the appellant permission to appeal to this court on the Article 3 point only Lord Justice Sedley observed that there was no viable Geneva Convention case here for the reasons given below. Mr Ogunbiyi who appeared before us for the appellant has not sought to challenge that ruling. The appeal has accordingly proceeded solely in relation to the appellant’s claim to the protection of Article 3 of the European Convention. Only one issue arises, namely whether the return of the appellant to the Russian Federation would put the United Kingdom in breach of Article 3. The sole remaining basis for asserting that it might turns on the conditions of detention in the penal system in which the appellant would be held in Russia.

There are many cases in which an asylum seeker’s claim to the protection of the European Convention in reality stands or falls with his claim to the protection of the Geneva Convention. This was plainly not such a case. The appellant’s claim to the protection of the Geneva Convention, although founded in large measure on the conditions he might be expected to have to endure if returned to a Russian prison, was based on his fear that he would be singled out for persecution as a non–ethnic Russian draft evader and convicted drug dealer. His claim to the protection of Article 3 of the European Convention, in contrast, was founded not on his own particular circumstances but on the conditions faced generally by persons, whether or not the victims of persecution, incarcerated in the Russian prison system. The dismissal of his claim to the protection of the Geneva Convention accordingly could not be in any way determinative, nor necessarily even indicative, of his quite separate claim to the protection of Article 3.

I need therefore say no more about the appellant’s claim to the protection of the Geneva Convention. I turn to Article 3.

The general principles are well established. So far as is material for present purposes they can be briefly summarised. Article 3 makes it unlawful for the United Kingdom “to remove an individual to a country where he or she is foreseeably at real risk of being seriously ill–treated” in a manner sufficiently severe to engage Article 3: see R (Ullah) v Special Adjudicator [2002] EWCA Civ 1856, [2003] 1 WLR 770, esp at para [47]. Article 3 provides protection only against ill–treatment which attains a “minimum level of severity”, and in the context of expulsion cases the ill–treatment “must necessarily be serious” such that “it is an affront to fundamental humanitarian principles to remove an individual to a country where there is a real risk of serious ill–treatment”: R (Razgar) v Secretary of State for the Home Department [2003] EWCA Civ 840, para [10], referring to Ullah paras [38]–[39]. The burden of establishing the Article 3 claim lies on the appellant: Aziz v Secretary of State for the Home Department [2003] EWCA Civ 118, esp at para [19]. What the appellant has to establish is that there are “substantial grounds for believing that there is a real risk of ill–treatment” of the requisite degree of severity in the receiving state: Razgar para [11], referring to Soering v United Kingdom (1989) 11 EHRR 439, para [91], and Chahal v United Kingdom (1996) 23 EHRR 413, para [74]. As the European Court of Human Rights said in the latter case:

As Mr Garnham correctly points out on behalf of the Secretary of State, an applicant may be able to meet this test either by referring to evidence specific to his own circumstances or by reference to evidence applicable to a class of which he is a member. The present case falls into the latter category. Mr Garnham submits, and I agree, that in this latter category of case an applicant will only be able to demonstrate substantial grounds for believing that there is such a real risk if he can point to a consistent pattern of gross and systematic violation of rights under Article 3.

In support of that submission Mr Garnham points to two authorities which, I agree, fully make good the proposition for which he contends. The first is the decision of the Immigration Appeal Tribunal in Muzafar Iqbal v Secretary of State for the Home Department [2002] UKIAT 02239, where the Tribunal said at para [57]:

That approach was endorsed by this court in Hariri v Secretary of State for the Home Department [2003] EWCA Civ 807, the other case to which Mr Garnham directed our attention. Lord Justice Laws (with whom both Lady Justice Arden and my Lord, Lord Justice Mummery, agreed) said at para [8]:

Founding himself on two of the phrases used by Lord Justice Laws – “no real risk … unless … such violence was generally or consistently happening” and “the fact that [it] might be routine or frequent would not be enough” (emphasis added) – Mr Garnham further submitted that, absent evidence that the individual applicant is at real risk because of circumstances peculiar to him, the fact that ill–treatment of the relevant class is frequent (but falls short of being in the Iqbal sense consistent and systematic) will not suffice to establish a “real risk”. I have to say that I have some misgivings about this. Having had the opportunity of reading in draft what my Lord, Lord Justice Sedley, has to say on the point I respectfully agree with it.

Well known Strasbourg jurisprudence establishes that the conditions in which a prisoner is detained can be so unsatisfactory as to constitute inhuman or degrading treatment within the meaning of Article 3 even though there is no intention on the part of the authorities to humiliate or debase the victim. I need refer for this purpose only to Peers v Greece (2001) 33 EHRR 1192 and, in particular, to the following passages in the judgment of the European Court of Human Rights:

Having described the conditions in that case the Court continued:

I need only add that, as the Court made clear in Dougoz v Greece (2001) 34 EHRR 1480, para [45]:

So much for the general principles. I turn now to consider the question of whether prison conditions in the Russian Federation are such as to engage Article 3. The Immigration Appeal Tribunal had had occasion to consider this very question in relation to another Russian asylum seeker in Krotov v Secretary of State for the Home Department [2002] UKIAT 01325, decided on 2 May 2002. There the Tribunal said (para [9]) that, although the objective evidence showed that prison conditions in the Russian Federation were “extremely harsh and frequently life threatening” and “deeply unpleasant”, yet “the conditions of imprisonment in the Russian Federation generally do not raise any real risk of torture or other degrading or inhuman treatment, contrary to Article 3”. In the light of that authority it is perhaps hardly surprising that when, the following month, the Adjudicator came to give his decision in the present case he should have found that, although prison conditions in Russia were harsh, the appellant had failed to make out his claim under Article 3.

That was on 21 June 2002. A little less than a month later, on 15 July 2002, the European Court of Human Rights decided what for present purposes is on any view the crucially important case of Kalashnikov v Russia (2002) 36 EHRR 587. The Court summarised the jurisprudence at para [95]:

The conditions in which the claimant in that case had been held during the period from June 1995 until June 2000 were described by the Court in some detail: see paras [97]–[99]. Finding that there had been a breach of Article 3 the Court continued:

What is important for present purposes, and what gives the decision in Kalashnikov its wider significance, are the admissions of the Russian Federation’s Government as recorded by the Court in paras [93]–[94]:

Put shortly: conditions which the Russian Federation accepted fell below the standards set by other member States of the Council of Europe, and which the Court held amounted to degrading treatment constituting a breach of Article 3, were admitted by the Russian Federation to apply to “most detainees in Russia”.

Thus the Court on 15 July 2002. The present case, as I have said, was determined by the Immigration Appeal Tribunal on 7 February 2003, seemingly without any reference to Kalashnikov. It seems that the case was not cited to the Tribunal by those who at that stage were representing the appellant. Be that as it may, the fact is that the Tribunal made no reference at all to Kalashnikov. Indeed it would seem that the Tribunal cannot have had it in mind, for it appears to have based its decision to dismiss the appellant’s appeal on its own previous decision in Krotov, a decision which of course pre–dated Kalashnikov. Only in an annexure to his application dated 17 February 2003 seeking permission from the Tribunal to appeal to this court did the appellant for the first time seek to rely on Kalashnikov. Explaining why permission to appeal to this court was being refused on the Article 3 ground the Vice President made no reference to Kalashnikov. He merely said:

Before the Tribunal, as before the Adjudicator, the appellant had sought, as I understand it, to rely upon the objective materials contained in the relevant ‘Country Report’ for the year 2001 relating to the Russian Federation published by the Department of State of the United States of America on 4 March 2002 and the corresponding Home Office CIPU ‘Country Assessment’ published in April 2002. His primary contention before us is that the Tribunal in effect disregarded this material, came to a conclusion in absolute contradiction to the objective evidence, and adopted an attitude inconsistent with that of the European Court of Human Rights in Kalashnikov.

Put very shortly the appellant’s case is that, as an escaped convict, if he is sent back to Russia he is sure to be returned to prison there; and in the light of Kalashnikov it is almost inevitable that the conditions in prison will be such as to subject him to degrading treatment in breach of Article 3.

The Secretary of State, whilst accepting that Kalashnikov is plainly relevant, asserts that it is neither binding authority nor, says Mr Garnham, does it provide definitive guidance on any of the issues of substance. The judgment in Kalashnikov, he says, is a conclusion on the facts of a particular case. No two cases alleging detention in conditions breaching Article 3 will be identical, and the court must look at the individual circumstances of each case to decide if a violation has been established. The appellant’s experience of prison in Russia was, he says, hugely different from Kalashnikov’s, and even on the evidence adduced by the appellant himself there was nothing to show that he had been kept in conditions breaching Article 3.

I cannot accept Mr Garnham’s submissions. As I have already said, the appellant’s remaining claim to the protection of Article 3 is founded not on his own particular circumstances but on the conditions faced generally by persons, whether or not the victims of persecution, incarcerated in the Russian prison system. To establish his case he does not need to refer to evidence specific to his own circumstances but rather to the evidence bearing on the class of which he is a member, in other words, in the circumstances of this case, to the evidence showing the conditions faced generally by persons incarcerated in the Russian prison system.

True it is that the decision in Kalashnikov focussed on the conditions in which Kalashnikov himself had been detained, and addressed the question of whether he had been subjected to degrading treatment. But the wider significance of the case emerges from the Russian Federation’s admission that conditions which the Federation accepted fell below the standards set by other member States of the Council of Europe, and which the Court held amounted to degrading treatment constituting a breach of Article 3, applied to “most detainees in Russia”.

In my judgment, if the only basis for deciding whether the appellant faced degrading treatment if returned to a Russian prison were Kalashnikov, the decision of the Tribunal would have to be reversed. The decision in Kalashnikov establishes, on facts conceded by the Russian Federation, that any person held in a Russian prison at the time Kalashnikov was imprisoned was at real risk – indeed at clear risk – of degrading treatment. Kalashnikov revealed a consistent pattern of gross and systematic – even if not intentional – violations of the human rights of those detained in Russian prisons. And, if this is so, it would not be an answer that the appellant’s own experience of custody before his escape had not replicated Kalashnikov’s.

The Immigration Appeal Tribunal had occasion to consider the wider implications of Kalashnikov in its recent decision in B v Secretary of State for the Home Department [2003] UKIAT 00020 B (Russia), another case involving a Russian asylum seeker. We heard no sustained argument on the point, but I have to confess to misgivings about the Tribunal’s description (in para [64]) of Kalashnikov as being “of limited relevance to the issue we have to decide” – which was in fact the same issue as that which arises in the present case – and in its assertion (in para [67]) that Kalashnikov “did not proceed on the basis that conditions in all Russian prisons generally were contrary to Article 3, only that given widespread problems in such prisons an applicant would have less difficulty proving his case as to ill treatment in a particular prison than would an appellant facing imprisonment in a country where prison conditions were generally good.” With all respect to the Tribunal, that does not, in my judgment, adequately recognise the wider general significance of Kalashnikov, nor does it accurately reflect the evidential burden facing an applicant either in the position in which B found himself in that case or in the position in which the appellant finds himself here.

There is in this type of case no burden on an applicant – in the nature of things there cannot be any burden – to show that he will be ill treated in a particular prison in such a manner as to engage Article 3. The question is simply whether there are substantial grounds for believing that there is a real risk that if the appellant is returned to the Russian Federation he will be subjected to degrading treatment such as to involve a breach of Article 3. Kalashnikov, in my judgment, demonstrates that, prima facie, the answer to that question is that he will be subjected to such degrading treatment, and therefore his return to Russia is prima facie unlawful.

The only possible answer to this can be that since the events considered in Kalashnikov – in other words since June 2000, when Kalashnikov was released from his Russian prison – things have changed sufficiently to reduce the risk faced by the appellant to an acceptable level. That is precisely what the Secretary of State asserts. Specifically he asserts that there is substantial evidence of significant improvements in Russian prisons since Kalashnikov; that there was indeed evidence of some improvement even at the time of the judgment in Kalashnikov; that the Russian government has recognised the problem and expressed an intention to address it; that both short–term measures and longer term structural changes have been introduced; and that, although the position is still far from perfect, and conditions vary from place to place, there is already evidence that the changes are proving effective. Mr Garnham very frankly concedes that the Secretary of State is not suggesting that there have been improvements in all aspects of prison life throughout the Russian prison estate, but he submits that, given the changes in Russian prison conditions since Kalashnikov, the contention that there are substantial grounds for believing that there is a real risk of the appellant being seriously ill treated is impossible to maintain.

Mr Ogunbiyi disputes this. He says that, whilst the government of the Russian Federation has announced some changes, the improvements are not as significant as they have been made out to be, and that in any case a lot of the proposed changes are still in their infancy. So on any view, he says, it is too early to conclude that the changes are such that the real risks the appellant faces if returned to Russia have been eliminated.

By application notice dated 2 October 2003, and for reasons set out in a witness statement by a lawyer in the Treasury Solicitor’s Department also dated 2 October 2003, the Secretary of State sought permission to rely before us on certain additional materials that were not – some of which, indeed, could not have been – before the Tribunal. These include: the Fifth Periodic Report of the Russian Federation to the United Nations Human Rights Committee dated 9 December 2002; the State Department ‘Country Report’ for the year 2002 published on 31 March 2003; the Home Office CIPU ‘Country Assessment’ published in April 2003; Interim Resolution ResDH (2003) 123 of the Council of Europe Committee of Ministers adopted on 4 June 2003; the Report to the Russian Government on the visit to the Russian Federation carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 2–17 December 2001, published on 30 June 2003; and the Response of the Russian Government to that Report also published on 30 June 2003.

The Secretary of State’s new material was put forward on 2 October 2003, a Thursday. The appeal came on for hearing before us on 7 October 2003, the following Tuesday. Mr Ogunbiyi did not seek to resist the Secretary of State’s application. But inevitably he had had only limited opportunity either to assimilate all this new material or to ascertain whether there were other materials that he might wish to rely on. In fact he was able to tell us that there was material from Amnesty International that bore on the point.

I do not see how in these circumstances we can possibly investigate all this new material ourselves. It would in any event be wrong for us to do so, for we sit here as an appellate court and not as a fact-finding tribunal. Moreover, the appellant requires more time to consider both the materials now being relied on by the Secretary of State and any other materials that, given proper time, he may be able to find which bear on the point.

In the circumstances the proper course, in my judgment, is for us to give the Secretary of State permission to adduce the new evidence and to allow the appeal to the extent of remitting the case to the Immigration Appeal Tribunal for rehearing on such evidence, including but not limited to that which we have been shown, as either side may now wish to adduce. It will be for the Tribunal to determine, in the light of all the evidence, whether there are substantial grounds for believing that the appellant will face a real risk of treatment that violates Article 3 if returned to a Russian prison. Central to that investigation, as it seems to me, will be a consideration of the extent to which conditions in the Russian prison system have or have not improved since Kalashnikov.

It is a matter for the Tribunal, and not for this court, to give any further directions that may be required. I would only observe that the case should, I think, be heard before a freshly constituted Tribunal.

There is one final point I should add. This case is, on any view, one with potentially wide ramifications. It is therefore important that the Tribunal has before it all the relevant materials. The Secretary of State and his advisers can, I am sure, be relied upon to bring to the attention of the Tribunal all the relevant materials, irrespective of whether they may be thought to assist the one side or the other.

I agree with the judgment of Mr Justice Munby and with the order he proposes.

I want to add a word, however, about the evaluation of conditions which are alleged to create a real risk of inhuman treatment. The authority of this court has been lent, through the decision in Hariri, to the formulation that ill-treatment which is “frequent” or even “routine” does not present a real risk to the individual unless it is “general” or “systematic” or “consistently happening”: see paragraphs 9 to 10 in the previous judgment.

Great care needs to be taken with such epithets. They are intended to elucidate the jurisprudential concept of real risk, not to replace it. If a type of car has a defect which causes one vehicle in ten to crash, most people would say that it presents a real risk to anyone who drives it, albeit crashes are not generally or consistently happening. The exegetic language in Hariri suggests a higher threshold than the IAT’s more cautious phrase in Iqbal, “a consistent pattern”, which the court in Hariri sought to endorse.

There is a danger, if Hariri is taken too literally, of assimilating risk to probability. A real risk is in language and in law something distinctly less than a probability, and it cannot be elevated by lexicographic stages into something more than it is.

Like Mr Justice Munby I have no doubt that the Home Office will give the IAT all possible help in ascertaining what has been the extent of change in the Russian prison system since 2000. It is to nobody’s advantage to find that an ostensibly comprehensive background appraisal on which decision-makers then rely in judging individual claims has been arrived at in ignorance of material information and has to be undone

I agree with both judgments.