Sumenkova (Sufficiency Of Protection - Ethnic  Russian) Latvia [2001] UKIAT 00019

IMMIGRATION APPEAL TRIBUNAL

Date heard: 8 May 2001
Date notified: 16/07/01

Before:-

Dr H H Storey (CHAIRMAN)
Mr J Freeman (VICE PRESIDENT)
Mr M G Taylor CBE

Between

Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

DETERMINATION AND REASONS

1. The appellants, ethnic Russians from Latvia, are sisters.  Together with the first appellant’s child, they have appealed with leave of the Tribunal against a determination of Adjudicator, Miss S Beg, dismissing their appeal against the decision of the Secretary of State not to grant them leave to enter, having refused them asylum.  Miss S Broadfoot of Counsel instructed by S Osman Solicitors appeared for the appellants.  Mr T Moore appeared for the respondent.

2. The passport held by both appellants described them as stateless.  No satisfactory evidence has been produced to establish that they are citizens of either Latvia or Russia.  In the absence of such evidence the Tribunal must conclude that the passport evidence demonstrates that the appellants are in fact stateless persons.  As a consequence the issue of whether they have a well-founded fear of persecution has to be decided by reference to their country of former habitual residence.  Both parties indicated at the outset their acceptance that this was the correct way to proceed.  Both parties also accepted as beyond dispute that in respect of both appellants their country of former habitual residence was Latvia.  Since both appellants had lived in that country all their life, it could not be any other country.

3. Miss Broadfoot outlined the distinguishing characteristics of this case as being that the first appellant had been involved with the Communist Party (CP) as a member of Komsomol.  Her cousin, who lives in Russia, worked for the KGB as had his wife who used to work as a secretary to the current Russian premier, Valdimir Putin, whilst he was in the KGB.  Her mother had been arrested in 1995 for picketing.  Her father had been beaten and disabled as a result. Both appellants had been arrested in incidents from 1998 onwards.  The adverse attention paid to them by the Latvian authorities heightened in February 1999 with the visit of their cousin from Russia.  Two specific incidents caused them serious harm. Stones had been thrown through their window inuring the first appellant’s child.  An attempt had been made to abduct this child.  In addition there had been a series of aggressive threatening telephone calls.  Having found the appellants credible the adjudicator had gone wrong in dismissing as conjecture the appellants’ belief that those behind the threatening calls and the attempted abduction were the security forces.  The threats that they would be prosecuted for spying against the Latvian state showed that the authorities had a specific adverse interest in the family.  Even if it was not accepted that state agents were behind the troubles experienced by the appellants, it was incumbent on the adjudicator to have considered whether the Latvian authorities could effectively protect them against serious harm from non-state actors. The evidence also suggested that eh authorities would be unwilling to protect the appellants: the police did not take a statement from them.  The adjudicator should also have considered in cumulative fashion the background discriminations facing the two appellants as ethnic Russians, taking note in particular of the Latvian Human Rights Committee’s assessment and that of the country expert Dr Melvin of the difficulties ethnic Russians faced in matters of employment, citizenship, education, language housing and possibly deportation.  Their situation was precarious and unsettled.

4. Mr Moore urged the Tribunal to conclude that the adjudicator had carefully considered the objective evidence as to the position of ethnic Russians in Latvia and was fully justified in concluding that they did not face persecution per se. The latest US State Department Report recorded no political killings or disappearances or forced exile or wire tapping.  Past links with the CP would not be a cause of persecution in today’s Latvia.  Albeit she had been short in the reason she gave, the adjudicator was also correct in her evaluation of the appellants’ particular circumstances.  If there was Latvian legislation which could block a proper grant of residence for former residents, there was no sign that it was actually been used against returning ethnic Russians.

5. The Tribunal has decided that the appeals should be dismissed.

6. The Tribunal would accept that the adjudicator’s determination gave only brief reasons for dismissing the appeal.  However for reasons given below we are satisfied that with one exception the reasons were sufficient to justify dismissal of the appeal.

7. The exception relates to the adverse weight the adjudicator attached to the fact that both appellants were able to leave Latvia through normal immigration channels without problems.  In the context of their own account this factor was not a valid indicator of whether the appellants would or would not face persecution upon return, since part of the appellants’ own account was that the authorities wanted them out of Latvia.

8. However, we consider that the adjudicator said enough to explain why she was dismissing the appeals and we also consider that on the evidence before her she was right to dismiss them.

9. In this regard we cannot accept Miss Broadfoot’s submission that the adjudicator effectively found the appellants credible in all respects.  In the first place she qualified her positive finding of credibility by saying that she found them “[overall]…credible”.  In the second place she went on to identify clearly what she did not accept.  She did not accept key aspects of the appellants’ own assessment of who had been behind the threats made of them.  With regard to the questioning of the appellants about their cousin and his wife, her conclusion was that:

“I find that the officers who questioned the appellants about their cousin and his wife during detention and who told them and threatened them that they should leave Latvia were abusing their official position.  I do not find that their actions reflect the official attitude of the authorities towards ethnic Russians”.

10. Nor did the adjudicator accept that the persons behind the two incidents of the stone throwing and the attempted abduction were state agents:

“The appellants were unable to state who broke the windows of their home, who made threatening phone calls to them or indeed the identity of the men who spoke to one of the appellant’s children.  The appellants’ suspicion that these incidents were caused by state security officials is only conjecture”.

11 In essence, therefore, she made clear that whilst she accepted that the appellants had experienced the incidents they described, she was not  prepared to accept their own gloss on them.  On the one hand she did not accept that the difficulties they had had with the police were a true reflection of the attitude of the authorities of the state to them.  On the other hand she did not accept that either of the two main incidents they described were caused, as they surmised, by the police or the security forces.

12. Whilst the adjudicator should have made clearer whether she considered the source of the harms to therefore have been non-state actors, she was consistent in holding that the evidence did not establish that those behind the threats were the normal authorities of the state.

13. Integral to the appellants’ grounds of appeal was the claim that in reaching these conclusions about the unofficial source of the harms they had faced the adjudicator  overlooked firstly, the preponderance of the general country assessments which showed that ethnic Russians in fact face persecution and secondly, the evidence showing  that the Latvian authorities would have a motive for persecuting persons associated with the Communist Party.

14. The Tribunal cannot accept either of these claims.

15. The Tribunal cannot accept the submissions made on behalf of the appellants that in current-day Latvia there is a lack of sufficient protection by the authorities of the state of ethnic Russians.  We consider that the adjudicator was correct to conclude that there is not overall “harassment and persecution of ethnic Russians in Latvia by the authorities”.  The objective country material do bear out that there have been some incidents of human rights abuses on the part of police in their treatment of individuals at demonstrations and of persons in custody .  They also bear out that ethnic Russians face a range of discriminations in the fields of housing, employment and education especially.  These have been aptly summed up by country expert Dr Melvin as indicative of reluctance on the part of the authorities to accommodate the Russian minority.  However the same materials make clear that human rights abuses committed by the police are limited in number and whilst the judicial system is still relatively weak, there is no evidence of significant corruption or bias.  The same materials emphasise that almost 34% of the Latvian population are ethnic Russians and that the Latvian government has put in place a number of legislative and social measures aimed to protect the human rights of ethnic minorities.  They note that there are no ethnic restrictions on political participation.  As the adjudicator also noted, human rights organisation are allowed to operate within Latvia.  Like the adjudicator we consider, as a fair evaluation of the situation in Latvia currently, the CIPU report at paragraph 5.15 that in general the rights of the Russian-speaking minority in Latvia, regardless of whether a person possesses Latvian citizenship or not, continue to be respected and protected.  There is no satisfactory evidence of any failure by the Latvian authorities to show a reasonable willingness to afford protection to ethnic Russians.

16. Miss Broadfoot argued in the alternative that even if there was a sufficiency of protection for ethnic Russians in general, that did not of itself establish that these two appellants in particular would be effectively protected by the authorities upon return.  The Tribunal would agree with this contention as far as it goes.  However, it does not consider that the appellants have shown that they would be ineffectively protected.  We note that on the first thrown through the window of her parents’ house hitting her child to the police; she went no further than telling them about it on the phone.  Furthermore, in relation to neither this incident nor that of the attempted abduction of her son had it been established that the official authorities condoned or approved of what had happened.

17. Neither can the Tribunal accept the claim that the adjudicator attached insufficient weight to the evidence of state and societal animus towards persons associated with the Communist Party.  We accept that a key part of the appellants’ case was that they would be targeted either by the authorities or anti-Russian Latvians because of their past Communist Party membership and activities.  However, on their own account, neither was particularly active politically.  Although they attended rallies, they did not organise them and they did not hold any position in their youth organisation.  It is true that their parents were more closely involved in the Communist Party.  However, on their own account their parents had continued to live in Latvia without encountering particular attention from the authorities or anti-Russian Latvians, albeit they did experience day-to-day discriminations.

18. The Tribunal would accept that both appellants experienced difficulties with the authorities in the course of their participation in rallies held in support of ethnic Russian causes.  However on their own account they were only briefly detained, they were not ill-treated and were not charged with any offence.  Threats were made but he evidence did not demonstrate that those who made them did so with official blessings.  The evidence did bear out that the police had arrested them and questioned them about their KGB-linked cousin and his wife.  However, this action on the part of the Latvian authorities appears to have gone no further than a legitimate inquiry into whether the appellants were involved in any activities jeopardising the national security of Latvia.

19. For the above reasons these appeals are dismissed.

DR H H STOREY
VICE-PRESIDENT