Batayav v Secretary of State for the Home Department

LORD JUSTICE BUXTON: The appellant, Mr Zorig Batayav, is a citizen of the State of Russia. He came to this country from the Russian Federation as long ago as 7th August 2001 and immediately claimed asylum in accordance with the Refugee Convention, and also claimed protection of Article 3 of the European Convention for the Protection of Human Rights. Since that date, 7th August 2001, he has been continuously engaged, in one capacity or another, in the judicial processes of this country.

I do not need to set out the steps that led to his case coming before this court on 5th November 2003 ([2003] EWCA Civ 1489). By that stage he had not persisted in, and does not persist before us in, his claims under the Geneva Convention; his claim was limited to his claim for protection under Article 3. The basis of that claim is that as a person of Tuvan (Mongolian) ethnic origin, he had refused to join the Russian forces because he was unwilling to participate in the military action then taking place in Chechnya. As a result of that, he had been imprisoned, but had in some way managed to escape and make his way to this country. On return to Russia he would therefore be immediately returned to serve what he accepts -- although he does agree with it -- was a regular prison sentence.

His case under Article 3 is that conditions in Russian prisons are such that they inevitably entail a breach of Article 3 of the Convention. I use the word "inevitably" quite deliberately because, as this court in the leading judgment of Munby J observed in Mr Batayav's first case, a person may be fearful of Article 3 treatment on two quite separate grounds. First, that there is something about his particular case that will, or very likely will, lead the authorities to treat him in such a way as is inconsistent with Article 3. The second category, which is the present case, is where the conditions generally for all prisoners are such that a sufficiently significant risk of Article 3 treatment is engaged in respect of any person who is imprisoned. That distinction was taken by this court in Mr Batayav's previous application in paragraph 7 of its judgment, in which this court said:

The reason for that distinction, and the use of the expression "gross and systematic", was explained by Laws LJ, giving the judgment of this court, in Hariri v Secretary of State [2003] EWCA Civ 807. Laws LJ pointed out that the distinction was one of logic, and the reason for the expression "gross and systematic" was, in Laws LJ's words, which I venture to quote:

It is quite true that in Mr Batayav's own appeal Sedley LJ expressed some reserve about the particular language used in that statement of Laws LJ. That was not the view, as I understand it, of the other members of the court. However, be that as it may, it is clear that to establish an Article 3 case of the sort that Mr Batayav seeks to establish significant evidence must be given of conditions in the system that are universal, or very likely to be encountered by anyone who enters that system. That point is of some importance at a later stage of this appeal.

The court in Mr Batayav's first appeal was strongly influenced by the crucially important case, as they described it, that of Kalashnikov v Russia [2002] 36 EHRR 587, in the European Court of Human Rights. The court pointed out that breaches of Article 3 might arise because it was the intention of the prison system to humiliate or debase its prisoners. But, the court said, the possibility of a breach of Article 3 did not end there, because it might be the case that conditions generally were such that they went beyond, as the court put it at paragraph 95, the inevitable element of suffering or humiliation connected with a legitimate form of punishment, and amounted to inhumane treatment.

The conditions in which Mr Kalashnikov had been held during the period from June 1995 until June 2000 were described by the court in some detail. They can be summarised as saying that, first of all, gross overcrowding was endemic in the Russian system and that, quite apart from that, the particular prisoner had suffered from sleep deprivation, had contracted various diseases, and had not been given any privacy in toilet arrangements. Importantly to the decision were concessions made by the authorities of Russia as to the overcrowding in the prisons and their claim that they were intending to improve that overcrowding and improve sanitary conditions, though they had not yet done so. Those conditions, which the authorities of the Russian Federation at that time accepted, were held to fall below the standards required by Article 3 of the Convention. It was therefore clear to this court that if conditions in Russia would still be the same as and when Mr Batayav was returned there as they had been at the time of which Mr Kalashnikov complained, then it would necessarily be a breach of this country's obligations under Article 3 to return him there.

It was, however, the Secretary of State's contention before this court that conditions had changed, and that there was a considerable body of evidence that indicated that conditions in Russian prisons, although not still satisfactory, were different from those that had been perceived in Kalashnikov: to the extent that it would not any longer be justified in contending, as Mr Batayav did and does, that to return him to prison in Russia would necessarily involve a breach of this country's Article 3 obligations. This court therefore decided that the proper way of resolving the dispute was to remit the matter to the Immigration Appeal Tribunal for re-hearing on the whole of the evidence, giving liberty to both sides to adduce such further evidence as they had available to demonstrate the present position. This court went on in paragraph 33 of its judgment:

The Court of Appeal had expressly contemplated that the Secretary of State would make available to the Tribunal all the relevant country materials, and a comprehensive bundle of such materials was prepared and placed before the Tribunal. We are told in the Secretary of State's skeleton, and not disputed, that the appellant's solicitors were invited to comment on the contents of that bundle one month prior to the hearing before the Tribunal, but they failed to do so. The remitted application therefore came on before a new constitution of the Immigration Appeal Tribunal on 13th July 2004. It is from that Tribunal's conclusions that this appeal is brought.

I have said enough about the background to that hearing, I think, to indicate that it was understood on all sides that the hearing was a substantial and significant inquiry into the particular question remitted by this court: that is to say, whether or not conditions had improved to the extent that it was not necessarily a breach of Article 3 to send Mr Batayav back to the Russian Federation.

The Tribunal set out at considerable length the detailed matter that had been put before it and the conclusions that it reached from it. It is only fair to the Tribunal, since, as I shall show in a minute, this case is really brought on the basis of lack of reasoning or lack of proper procedure on its part, to set out what it said about the materials it had before it and the views that it formed of it:

It will be seen from that, in particular at paragraph 14, that the Tribunal concluded that the evidence showed that the Russian prison system no longer suffered the severe problems of overcrowding that had been identified in the Kalashnikov case. That was a conclusion that it reached having, as it said, looked at the material that was before it. So far so good. At paragraph 15 the Tribunal went on to say this:

The submissions to this court, settled by different counsel, set out that the appellant did not agree with the concession made by Ms Nicholas, which he said should not have been made. It did not seem to be understood that if that concession was indeed to be withdrawn, an application had to be made to the court to withdraw it: because, even in a jurisdiction where the Tribunal has a somewhat more interventionist role than perhaps in orthodox civil litigation, nonetheless it is entitled to take seriously a concession made no doubt after scrutiny of the evidence, by a responsible member of the bar.

Today we are told that not only is the concession sought to be withdrawn, but also that in fact it had not been made at all. We have been shown the skeleton arguments put before the Tribunal below by counsel.

I do not in fact need to go into this matter in any great detail. I will, however, say that it seems to me clear from the way in which counsel expressed herself, particularly in paragraph 9 of her more expansive skeleton, that the Tribunal was very well justified in drawing the conclusion that she indeed accepted that the overcrowding in prisons was not "a major or universal problem". Whether she made that concession or not, and whether she was right or wrong, in fact does not influence the case at all: because, as is plain from the passage that I have already read, the Tribunal had reached that conclusion by its own investigation, and before it got anywhere near to Miss Nicholas' concession. The extensive passage set out above in which the Tribunal describes its sources and its findings preceded in their logical argument anything that Miss Nicholas had said, and in reporting her concession they recorded that they regarded it as inevitable on the evidence they had heard. I can therefore pass on from that episode, despite it having taken up a good deal of time in this court and in previous exchanges, save for one point.

When I come to describe the criticisms that were made of the Tribunal's reasoning, it will be seen that they include an allegation that the Tribunal gave excessive weight to Miss Nicholas' concession, whether or not they were right in thinking it had been made at all, and, as seemed to be put at one point in the oral argument, had effectively not addressed their mind to the question remitted to them by this court simply because they thought it had been conceded by counsel. It is quite clear from reading the determination as a whole that nothing was further from the case. They clearly regarded this concession, as I regard it, as irrelevant to the careful review of the material that this court had told them to undertake.

Having dealt with the overcrowding question, the Tribunal then did what Miss Nicholas said they should do; that is to say, to go on and look at the position with regard to the threat of disease. They rightly pointed out that in the light of the guidance given by Laws LJ in Hariri, which I have already set out, the case on threat of disease was a great deal more difficult for the appellant to make. That was because there was no suggestion that disease, as opposed to the overcrowding as it had understood to be at the time of Kalashnikov, was endemic or universal, and therefore, as the Tribunal held in paragraph 19, "it cannot be suggested today that every prisoner is necessarily going to suffer harm from the increased risk of disease". That was an approach that was open to them on the evidence as to current conditions and difficulties in Russian prisons - evidence that I however readily accept, as the Tribunal did, gave no cause for complacency. However, they concluded in these terms in paragraph 22 with regard to Mr Batayav:

It is important also to bear in mind when one is comparing the situation of a potential returnee like Mr Batayav with the case as it affected an actual prisoner, like Mr Kalashnikov, that the question for the courts and authorities of this country is indeed the likelihood of Mr Batayav suffering disease should he be returned to Russia. Mr Kalashnikov was in a different case because he was a person already imprisoned who in fact had suffered disease and therefore could claim that very suffering, that very disease, as part of his Article 3 case. The point is different, and has to be approached, in my respectful view, in the way that this Tribunal approached it, where one is looking at the future likelihood of disease occurring.

So far therefore I, for my part, would see no failing in the Tribunal's reason or conclusions such as would engage this court, which is solely concerned with issues of law. It is therefore necessary to look at how the appellant's case is put in this court.

The nub of the grounds of appeal, leaving aside the point about the concession which I have already rejected, is to be found in paragraph 9 of the grounds:

If we turn to the grounds as set out, it is plain that the first sentence is misconceived. It is simply not a ground of appeal to this court that the findings of the Tribunal are not sustainable on the objective evidence. The objective evidence in this case was extensive and manifold and it was for the Tribunal, unless it made an error of procedure, to determine which part of the evidence it accepted and which part it rejected. Mr Jacobs, on being pressed by the court, said that indeed the Tribunal did make an error of law in that it did not subject the evidence to a sufficient scrutiny. He supports that argument in particular by reference to the case in this court of S & others v Secretary of State for the Home Department [2002] INLR 416. It is that case that accounts for the contention at the end of ground 9 of the grounds of appeal that it is of importance that the present determination has been designated a country guidance case.

S & others was indeed also a country guidance case in which this court said that, in normal terms, this court would not go behind the conclusions reached by a tribunal where the IAT did not subject its reasoning to particular scrutiny. However, the court went on to say that because of the role played by country guidance cases in the general procedure of the tribunal system, creating what Laws LJ described as the anomaly in ordinary English law of a factual precedent, it was right that a safeguard in the creation of such precedents should lie in what Laws LJ described at paragraph 29 as "the application of the duty to give reasons with particular rigour". The Lord Justice went on to say that the IAT did not have to deal literally with every point in evidence, but when it purported to give a ruling upon the state of affairs in a particular territory, it must see that its decision is "effectively comprehensive".

I am bound to say, although I accept only as a footnote in the present appeal, that the status of country guidance cases and the role that they play, particularly in the appellate system, is probably going to need to be reviewed in the light of the comparatively recent restriction of the jurisdiction of the Immigration Appeal Tribunal itself simply to questions of law: rather than, as was the case at the time of S v Secretary of State for the Home Department, to questions of both law and fact. However, such reconsideration has not yet taken place, and therefore it is clearly right that we should give careful consideration to the argument based upon S v Secretary of State for the Home Department in addressing this decision.

In order to do that, Mr Jacobs took us through an analysis of the material that had been before the Tribunal, listed, as I have said, in its decision, and pointed to parts of it which appeared to say that overcrowding was still a problem and that there were problems with regard to health and other matters.

I do not intend to go through any of that in detail, or indeed at all. We have had the benefit of reading the analysis in Mr Jacobs' skeleton, of reading the analysis is Mr Otty's skeleton, which analysed each of these items, and of hearing further argument by Mr Jacobs upon it. It is quite clear to me that the complaints really go nowhere to undermine the essential conclusion of the Tribunal.

Mr Jacobs said that because this was a country guidance case, it was really necessary for the Tribunal to take every item in which any statement at all had been made inimical to its overall conclusion, and explain why it was not deflected by that statement from that conclusion. That, I have to say, is putting far too high an obligation on the IAT. The criticism that was made in S & others v Secretary of State for the Home Department went far wider than the claims made in this case. Significant reports had not been referred to at all and there had been significant and serious omissions in the Tribunal's review of the material. Nothing like that can possibly be said in this case. I have already set out what the Tribunal said and, in my judgement, it approached the matter with the rigour that is required and reached conclusions that were open to it. That is particularly so with regard to the overcrowding issue, where there was material before the Tribunal to demonstrate, and to demonstrate unchallenged, that the amount of space available to each prisoner had significantly improved. True it is that observers said in terms that overcrowding remained a difficulty. That may well be so, but the question is not that, but whether there had been a sufficient reduction in that problem to take it outside the ambit of Article 3 that was thought to follow of necessity in Kalashnikov. The Tribunal was entitled on the material before it, which it quoted, so to find. It was also entitled to make the findings that it did about the health problem, bearing in mind the particular issue in respect of that matter. On the material before the Tribunal, therefore, I do not consider that they demonstrated the error of approach or failure of rigour that in the end had to be the only criticism in terms of law that the appellant could make.

At a late stage of the process the appellant sought to put further materials before this court. They consisted of a report by a Professor Bowring, an expert in Russian affairs, drawn up very recently, indeed dated not much more than a week ago, in which Professor Bowring referred to various further developments, referred to a number of other documents and gave an account of some of his own experiences as an observer of the Russian prison system.

No formal application was made to admit this evidence, which was of course a significant failing on the part of the appellant. It was also completely unclear to me how the evidence could make any difference to the question that we have to decide, which is whether the Tribunal approached the evidence that was before it in a proper fashion. If, as is now accepted, that is the question, and this court is not engaged simply on replicating the fact finding task of the IAT, then I am baffled as to how it can be relevant to that question that other material was not before the Immigration Appeal Tribunal. The case of E & R was mentioned in this context, but that involved a completely different question of whether the question as put to the IAT itself had to be reviewed. I therefore do not see that this material would assist us. But even if it did I would have the gravest hesitation about introducing it into the case at this stage when at least Professor Bowring's views, and not all but at least some of the material that he adduces, was readily available at the time of the trial below and could have been adduced in that tribunal. Even if a formal application had been made to adduce this material it would have failed under orthodox Ladd v Marshall principles.

Despite all that, we have read it and we have had submissions on it from Mr Otty. Because this is a human rights case, it is right that I should record my view at least that the material, even if admitted and even if we were simply replicating the Tribunal's fact finding role, would make no significant difference to the conclusions that the Tribunal properly reached.

I would dismiss this appeal.

MR JUSTICE WILSON: I agree.

LORD JUSTICE WARD: I also agree. The appeal is dismissed.