SECOND DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Justice Clerk
Lord Macfadyen
Lord Johnston
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[2006] CSIH 6
XA174/04
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OPINION OF THE COURT
delivered by LORD
MACFADYEN
in
APPEAL
against
a decision of the
Immigration Appeal Tribunal notified on 27 July
2004
by
VLADIMIR BARYCHEV
Appellant;
against
THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Respondent:
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Act:
Frain-Bell; Drummond Miller
Alt:
Carmichael; Office of the Solicitor to the Advocate General
31
January 2006
Procedural history
[1] The appellant is a citizen of the Russian
Federation.
He is now 57 years of age. He and
his wife arrived in the United Kingdom
on 20 December 2002. They travelled on their own valid passports,
and entered on valid visitor visas. On 24 December 2002 they claimed
asylum.
[2] The
appellant's application for asylum was rejected on 7 August 2003, and thereafter removal directions
for his and his wife's return to the Russian
Federation were issued. He appealed against these decisions. His appeal was heard by an adjudicator, whose
determination allowing the appeal was promulgated on 2 February 2004. The respondent then appealed against that
decision to the Immigration Appeal Tribunal ("the Tribunal"). That appeal was allowed on 27 July 2004. The appellant now appeals, with the leave of
this court, against the Tribunal's decision.
The undisputed
circumstances
[3] The
circumstances founded on by the appellant in support of his asylum claim are
summarised by the adjudicator in paragraphs 7 to 26 of his determination, and
by the Tribunal in paragraphs 2 to 15 of its determination. It is unnecessary to repeat them in detail
here. The appellant and his wife lived
in the city of Orel, about 360
kms from Moscow. The appellant was an engineering
manager. His wife was a dentist. The origins of the appellant's claim lie in
his involvement in a political party called Liberalnaya
Rossiya (Liberal Russia) that was formed in 1999. In February 2002, at a political meeting at
the factory where he was employed the appellant denounced a prominent
politician, one Nicolas Volodin, whom he believed to be guilty of
corruption. There followed a course of
persecution, in which the militia of the Department of Internal Affairs took
part. This involved serious physical
violence against the appellant and his wife, and ultimately threats of
death. The appellant was persuaded that,
for his and his wife's safety, they required to leave Russia.
[4] It
is a significant feature of the case that the adjudicator accepted the evidence
of the appellant and his wife as fully credible. In paragraph 31 of his determination he
summed up his findings in the following terms:
"
... I have accepted that [the appellant] was threatened after the speech at the
factory, subsequently assaulted and beaten, dismissed from his employ,
assaulted again in August [2002], had no redress from the authorities for any
of these events, sought to relocate elsewhere but permission was refused on the
basis of his past problems in Orel, his wife was brutally assaulted, and he was
threatened with murder in December [2002] only fortuitously escaping through
the intervention of a traffic warden."
In paragraph 33 he added:
"Viewing
the Appellant's case as a whole, therefore, I am satisfied that the authorities
have marked him down as a man to be watched, and if possible, eliminated."
The fact that the appellant had established (1) that he had
been persecuted because of his political activities and (2) that he had a
well-founded fear of such persecution if he were returned to the area of Russia
from which he came, was not disputed before the Tribunal.
The issue in the
appeal
[5] The only
issue which the respondent raised before the Tribunal was whether the adjudicator
had been entitled to conclude (as he did in paragraph 34 of his determination)
that for the appellant internal flight, i.e. relocation within Russia,
was not a viable alternative to seeking asylum.
The question of internal relocation had been put in issue in paragraph
21 of the Home Office letter of 7
August 2003, and was therefore a matter which the appellant had to
address.
[6] In terms of
section 101(1) of the Nationality, Immigration and Asylum Act 2002 ("the 2002
Act") (as it applied at the material date), appeal to the Tribunal was
available only on a point of law. It
follows, as Miss Carmichael for the respondent accepted, that the Tribunal was
entitled to interfere with the adjudicator's decision only if he erred in
law. The conclusion reached by the
Tribunal was that the adjudicator erred in one respect only, namely that there
was no evidence before him to entitle him to draw the inference that internal
relocation was not a viable course for the appellant. Before this court the issue is whether the
Tribunal was right in reaching that conclusion, and in treating the
adjudicator's error as one of law.
The evidence before
the adjudicator and his conclusion
[7] In paragraphs
19 and 20 of his determination the adjudicator records that, during the period
when he was suffering persecution in Orel, the appellant twice attempted to
relocate, once to the city of Lepetzh, which is between 250 and 300 kms from
Orel, and once to the city of Kursk, which is about 150 kms away. Both of these cities are in different
administrative regions from Orel. Both attempts were unsuccessful. The reason for the failure of the appellant's
attempts to relocate related to the operation of the registered residence
system in force in Russia. A permit, still colloquially known as a propiska, requires to be obtained for
residence in a particular region.
Application for a propiska
must be made to the relevant local office of the Ministry of the Interior. On each occasion when he made such an
application the appellant, instead of receiving a propiska, was advised that "he would have problems with a propiska" because it had been reported
that he had led "a very active political life at home". He was advised that in the regions to which
he was seeking to move, they would not be allowing him to do that. The appellant formed the view (the
adjudicator at paragraph 20 added "not surprisingly") that the authorities in
Lepetzh and Kursk had contacted
those in Orel and made enquiries
about his character and history. Having
failed in his attempts to move, the appellant was compelled to return to Orel,
where the persecution continued.
[8] There was
also before the adjudicator the Home Office Country Information and Policy Unit
Country Assessment for the Russian Federation
dated April 2003. Our attention was
drawn in particular to paragraphs 6.30 to 6.32 dealing with Freedom of
Movement. Those passages confirm the
operation of the propiska system, and
mention corruption and bribery in its operation. That among other material affords a basis for
the adjudicator's reference in paragraph 33 of his determination to a
"pervasive culture of corruption".
[9] The
respondent cited to the adjudicator the case of Secretary of State for the Home Department v C (Russia) [2003] UKIAT 00073, in which the respondent in that case
relied on the propiska system as an
answer to the suggestion that internal relocation was open to him. In the present case, the adjudicator
distinguished C (Russia) on the basis of the present
appellent's two failed attempts to move to other cities in different regions.
[10] In paragraph
21 of the letter of 7 August 2003
the Home Office, while acknowledging that "internal flight within the Russian
Federation would not be as easy as a
comparable relocation within the United Kingdom", went on to say:
"
... the sheer size, number of people living in the Russian Federation and the
fact that some areas have a more relaxed attitude to internal movement than
other (sic) means that you would be
able to move to a different part of the Russian Federation and escape from the
people who you alleged attacked you".
The adjudicator dealt with that suggestion in paragraph 34 of
his determination in the following terms:
"The
suggestion in the Reasons for Refusal Letter that the Appellant could somehow
lose himself in the vastness of Russia
has a fine Dostoyevskian ring about it, but in this day and age a telephone
call from Siberia or Irkutsk
will reveal the same information in the same time".
[11] The
adjudicator concluded:
"I
am therefore satisfied, on the personal experience and evidence of the
Appellant, that internal flight is not a viable option for him at this time."
The Tribunal's
reasoning
[12] In paragraph
17 of its determination the Tribunal asserted that that it was not controversial
that "the central Russian authorities are not interested in" the
appellant. They vouch that by reference
to the facts he was able to obtain passports and visitor visas and was not
harassed while in Moscow to obtain
them. No mention, however, is made of
the involvement of the militia of the Department of Internal Affairs in the
persecution of the appellant.
[13] In paragraph
18, the Tribunal points out that Volodin is a politician of local rather than
national influence. In paragraph 19 it
discusses the propiska system and
points out that where a person obtains a propiska
to settle in a new city, the authorities in the former place of residence
must be informed, to secure de-registration there. The Tribunal acknowledges that that means
there will be communication between the authorities in the new and old places
of residence. In paragraph 20 it
acknowledges the frequency of abuse and corruption in the system. In paragraph 21, it refers selectively to the
evidence of an expert witness, Dr Moya Flynn of the Department of Central and
East European Studies at the University
of Glasgow, whose report was not
before the adjudicator.
[14] In paragraph
24 the Tribunal professes difficulty in understanding why the appellant would
be in danger of persecution at the instance of Volodin if he moved away from Orel. They say in paragraph 25: "One would have thought that the one place
that Volodin did not want the claimant to be was Orel". It infers in paragraph 26 that the refusal of
a propiska for transfer of residence
to Lepetzh and Kursk was
attributable to unwillingness of the authorities in those cities to have a man
of the appellant's political background of opposition to Volodin resident
there. In paragraph 27 it says:
"We
cannot see ... why that should remain the position if the claimant were to move
several hundred or even thousand kilometres away from Orel. No one suggests that Volodin is a politician
of national stature. It is not suggested
that his power base is other than local.
If it were not for the propiska system we do not see how it could even
be arguable that the claimant could not safely relocate to a distant part of Russia
where Volodin is of no consequence and the claimant's past would be unknown."
The Tribunal then in paragraph 28 poses as the remaining
question whether the propiska system
would lead to Volodin's henchmen tracing the appellant and pursuing him. It concludes that there is no real risk of
that. It says in paragraph 30 that it
cannot see that there is more than the "tiniest risk" that the appellant's
de-registration in Orel would be
referred back to Volodin, or that Volodin would pursue the appellant.
[15] The Tribunal
concludes in paragraph 31 that "For all these reasons ... the adjudicator was ...
in error when he concluded that the claimant could not relocate elsewhere in Russia".
Discussion
[16] It is, in our
opinion, essential to bear in mind the scope of the statutory appeal from the
decision of the adjudicator to the Tribunal.
In terms of section 101(1) of the 2002 Act it was not for the Tribunal
to consider whether the adjudicator had in general erred in his decision. The appeal to them was "on a point of
law". They were therefore entitled to interfere
with the adjudicator's decision on matters of fact only if there was no
evidence before the adjudicator sufficient to support the conclusion which he
reached, or the decision was irrational.
[17] It seems to us
that the Tribunal has approached the question of internal flight as if it were
a tribunal of first instance, or an appellate tribunal entitled to address
matters of fact de novo. Although it is not a matter which we need
decide, the Tribunal's reasoning may well provide support for a decision
adverse to the appellant on the question of internal flight. But the fact that a case can be made for
deciding the question against the appellant on a different interpretation of
the evidence does not mean that it can be affirmed that the adjudicator's interpretation
was one for which there was no sufficient support in the evidence. The issue comes to be whether the adjudicator
was entitled to infer from the evidence before him that internal flight was not
an available option for the appellant.
That issue is not resolved, as the Tribunal seeks to resolve it, by
building a case for drawing a different inference.
[18] In our
opinion, the adjudicator was entitled, on the evidence before him, to draw the
inference that internal flight was not a viable option for the appellant. He was entitled to distinguish C (Russia) in the way he did. He had before him an appellant whose evidence
as to the persecution he suffered was found to be wholly credible and was
corroborated by his wife, who was also found to be wholly credible. He also, on the basis of the credible
evidence of the appellant and his wife, found it established that the appellant
had a well-founded fear of persecution if he returned to the part of Russia
from which he had come. It is of
significance, in our view, that the persecution which the appellant had
suffered was at the hands of the militia of the Department of Internal Affairs
(see paragraph 37 of the adjudicator's determination), and that the appellant
had failed to obtain any redress from the authorities and had no rational
expectation of such redress (see paragraph 32).
That is the background against which the adjudicator was entitled to
weigh the significance of the evidence that he had twice attempted to relocate
within Russia,
and twice failed because of his history of political activity. In our view, that evidence, against the
background which we have mentioned, entitled the adjudicator to draw the
inference that internal relocation was not a viable option for the appellant.
Further failure to obtain a propiska to
relocate would result in the appellant having to return to Orel,
the very place in which he was at risk of persecution. Although it is possible to analyse the
circumstances differently, as the Tribunal does in its determination, it cannot
in our opinion be said that there was no sufficient basis in the evidence for
the inference which the adjudicator drew.
We are therefore of opinion that the Tribunal erred in finding that the
adjudicator had committed an error of law.
The Tribunal was therefore in our opinion not entitled to substitute its
view of the facts for that taken by the adjudicator.
Result
[19] In these
circumstances, we allow the appellant's appeal against the determination of the
Tribunal of 27 July 2004,
and, in accordance with our power under section 103B(4)(b)
of the 2002 Act (as amended by the Asylum and Immigration (Treatment of
Claimants etc.) Act 2004), read with section 102(1)(a)
of the 2002 Act, affirm the adjudicator's determination of 2 February 2004.
