SC v Secretary of State for the Home Department [2002] UKIAT 00054
CC-12902-01

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 16/08/2001
Date Determination notified: 23 January 2002

Before

Mr K Drabu (Chair) 
Mrs R Faux 
Mr C Thursby 

Between

SC
	APPELLANT	
and
		
Secretary of State for the Home Department	RESPONDENT	

Mrs S Brown for the appellant,
Mr C Richmond of Counsel instructed by Thompson Leatherdale, solicitors for the respondents.

DETERMINATION AND REASONS

1.	The respondent is a citizen of Bangladesh. He was born on 24 January 1977. He arrived inb the United Kingdom on 30 November 2000 and claimed asylum. The application for grant of asylum was refused by the Secretary of State (appellant in this appeal) on 25 January 2001. The asylum claim was certified by the Secretary of State under paragraph 9(4)(b) of Schedule 4 to the Immigration and Asylum Act 1999. An appeal against the decision of the appellant was heard by an Adjudicator (Mr H W Turcan). He allowed the appeal, "but with some hesitation" on the ground that the return of the respondent to Bangladesh would lead to a breach of Article 3 of the European Convention on Human Rights. With regard to the certificate, the Adjudicator simply said, "Certificate not upheld". 
2.	The Secretary of State sought and was granted leave to appeal to the Tribunal on 26 June 2001. The Tribunal (Mr D K Allen, Vice President) in granting leave also noted its concern about "the absence of any apparent reasoning in the decision not to uphold the Secretary of State's certificate." 
3.	We heard submissions from Mrs Brown and Mr Richmond. Mrs Brown asked that the appeal be either allowed or remitted as the determination of the Adjudicator had fundamental flaws in it. In response Mr Richmond said that the only error in the determination was that it made no reference to any objective evidence. He submitted that evidence on torture in prisons in Bangladesh had been produced before the Adjudicator and was also available to the Tribunal. He argued that the Adjudicator's conclusion that the prison conditions in Bangladesh are inhuman and degrading is borne out by the objective evidence. He asked that we remedy the error in the Adjudicator's determination ourselves and dismiss the appeal. Mr Richmond went to say that as far as the asylum aspect of the respondent's claim is concerned, that claim had been properly dismissed by the Adjudicator. He conceded that there was no Convention reason in this case as the respondent had fled Bangladesh after having committed a crime. 
4.	Having reviewed with care all the facts in this case and also the Adjudicator's written determination, we have come to the conclusion that the Adjudicator's decision was in error of law. We also concluded that facts in this case do not support the conclusion drawn by the Adjudicator that the removal of the respondent to Bangladesh would be in breach of the respondent's rights under Article 3 of the European Convention on Human Rights. Our reasons are as follows: 
5.	Before we set out the reasons, we should like to give a summary of facts. The respondent's claim is that while he was a student at Sylhet Government College, he had joined the Jotya Party (JP). At the college there was intense rivalry between the members of the JP and the Awami League (AL). On 12 March 2000 the respondent was involved in a fight with members of the AL and he was shot in both legs and was admitted to hospital where he had to remain for several weeks. He believed that the assault on him was carried out by one person by the name of Imran. On 22 November 2000, the respondent, accompanied by five or six of fellow members of the JP caught up with Imran and the respondent shot him. After the shooting, claimed the respondent, he and his accomplices were advised to leave the area. He crossed over to India where he remained for three or four days. He then received a telephone call from his leaders who asked him to return to Dhaka, as they had made arrangements for him to leave the country. He was given a passport and an airline ticket and he used these to come to the United Kingdom. He claimed that a warrant for his arrest had been issued in Bangladesh and that he had been informed by his father that the police and members of the AL had been coming to look for him. He agreed that he had never been arrested or detained while in Bangladesh. Before the Adjudicator, he produced a letter dated 15 April 2001 from his father. The letter according to the Adjudicator, made no reference to any visits from the police. It was the claim of the respondent that he feared persecution in Bangladesh for a Convention reason. The Secretary of State did not accept this for reasons stated in the letter dated19 January 2001. The Secretary of State took the view that the claim lacked credibility and that in any event, the facts of the case, did not engage the Convention. The Secretary of State also considered the claim under various articles of the Human Rights Convention but concluded that no rights guaranteed under any of the articles would be breached by the removal of the respondent to Bangladesh. 
6.	The Adjudicator did not accept the criticisms made by the Secretary of State about the credibility of the respondent. He found it proved that the respondent had shot a person in anger and in revenge for the assault that this person had previously carried out on him. Upon consideration of the facts and paragraph 152 of the UNHCR Handbook, the Adjudicator rejected the submission made on behalf of the respondent that the crime, which the respondent had committed, was a political crime. He said, "I am entirely satisfied that the appellant's crime cannot possibly be described as political and that it was motivated, as his representative initially suggested, in anger and for revenge." This conclusion of the Adjudicator has not been challenged before us in written or oral submissions. Indeed it has been conceded that the respondent does not have an arguable claim under the Refugee Convention. So we will leave this matter there. 
7.	The Adjudicator then went on to consider the respondent's claim under various articles of the Human Rights Convention. He rejected the claim that he would be denied a fair trial. However he accepted that the prison conditions in Bangladesh are such that there were substantial grounds to believe that the respondent would suffer inhuman and degrading treatment on removal. The critical part of the Adjudicator's determination reads as follows: "He now faces prosecution for a criminal act if he should be returned. It is a somewhat startling proposition that conditions in prison would be such as to give rise to a breach of Article 3." He then referred to page 50 of the respondent's bundle setting out the US State Department Report released in February 2001, which states, "Prison conditions are extremely poor for most prisoners. The Supreme Court Chief Justice told a seminar on 10 August that prisoners live a 'sub-human' life. Official figures indicated that one hundred and thirty four persons died in prison in police custody during the year. According to credible sources, poor conditions were at least a contributing factor in many of these deaths. Most prisons are overcrowded and lack adequate facilities. According to government figures the current prison population of 63,489 roughly is 265% of the official capacity. Of these, 16,393 were convicted and 47,096 were awaiting trial or under trial. In some cases cells are so crowded that prisoners sleep in shifts..There are three classes of cells..A, B and C. Common criminals and low level political workers generally are held in C cells, which often have dirt floors, no furnishings and poor quality food. The use of restraining devices on prisoners in these cells is common." The Adjudicator then went on to say, "it might be suggested that such conditions might not amount to inhuman and degrading treatment when judged by Bangladeshi standards. But when read that the Supreme Court Chief Justice has himself said that prisoners live a 'sub-human' life, I find it difficult to avoid the conclusion that there are substantial grounds for believing that to return the appellant would lead to a breach of Article 3." 
8.	This case had been certified by the Secretary of State under paragraph 9(4)(b) of Schedule 4 to the Immigration and Asylum Act 1999. The Adjudicator failed to deal with this issue properly and to that extent he erred in law. In his determination the Adjudicator states, "Certificate not upheld", but gives no reasons for that conclusion. Paragraph 9(4)(b) "applies to a claim under the Refugee Convention if it shows a fear of such persecution, but the fear is manifestly unfounded or the circumstances which gave rise to the fear no longer subsist." Paragraph 9(2) states, "If, on an appeal to which this paragraph applies, the adjudicator agrees [with the opinion expressed in the Secretary of State's certificate], paragraph 22 does not confer on the appellant any right of appeal to the Immigration Appeal Tribunal." As can be seen, the consequences of certifying a claim can be quite severe and it is therefore all the more important for Adjudicators to pay full attention to the terms of the certificate, setting out a briefly reasoned decision as to whether or not the Adjudicator agrees with the certificate. That did not happen in this case. The Adjudicator gave no reasons for concluding, "Certificate not upheld". 
9.	As we have said earlier on, the Adjudicator's decision was also in error in respect of the conclusion he reached with regard to claim under Article 3. The Adjudicator based his conclusion purely on consideration of objective evidence regarding the prison conditions in Bangladesh as detailed in the US Department of State Report 2001 and the statement of the Chief Justice of the Supreme Court of Bangladesh made at a seminar last year where he is reported to have said that prisoners live "a sub-human" life in Bangladesh. We should first like to note that the rights guaranteed under Article 3 are among the most important rights guaranteed by the Convention as these are founded on the basic right to physical integrity. Under Article 3 the prohibition on torture and other forms of inhuman or degrading treatment is absolute and no derogation from its provisions is permitted in times of war or public emergency. However whilst bearing in mind the strength and remit of Article 3, it is also important to remember that not every mistreatment will fall foul of Article 3. For mistreatment to be caught by Article 3 it must be shown to have attained a minimum level of severity and the assessment of this minimum level of severity is relative and, as stated in Human Rights, Law and Practice, page 94, will depend on factors including the duration of the treatment, its physical or mental effects, and the age, sex, vulnerability and state of health of the victim. Whether or not mistreatment will amount to inhuman or degrading treatment or punishment is a matter of evidence, bearing in mind that the threshold is high and the burden of proof is upon the claimant. 
10.	Applying the principles stated in the previous paragraph to the facts of the case before us, we note that the claimant (respondent in the appeal before us) is a self-confessed killer. He has killed another human being in anger or in retaliation. On removal from the United Kingdom he will face murder or manslaughter charges. Given the seriousness of the offence, in all likelihood he will be refused bail pending trial. On conviction, the respondent is likely to receive a custodial sentence. There is no evidence before us and there was none before the Adjudicator too about the length of the custodial sentence that the claimant is likely to receive. The claimant is now 24 years old. He was a student before coming to the United Kingdom. His father and presumably the rest of his family live in Bangladesh. There is no evidence that the claimant's family is poor or lacking in resources. We have before us a copy of the CIPU report on Bangladesh for 2001. We have noted the contents of paragraphs 4.2.1 and 4.2.2. We are satisfied, as was the Adjudicator that the claimant will receive a fair trial. That conclusion has not been challenged before us. The CIPU report relating to prison conditions in Bangladesh is based entirely on the US Department of State report 2001 as can be seen from its paragraphs 5.4.16, 17 and 18. The contents of these paragraphs do not make happy reading. The prison conditions are extremely poor for most prisoners and these have contributed to 134 deaths in custody during 2000. We note that the government has begun construction of additions to jail facilities in an effort to alleviate overcrowding. We accept that the Chief Justice of the Supreme Court of Bangladesh has recently described the condition of prisoners in Bangladesh prisons as "sub human". Nevertheless we have to consider evidence in its totality with objectivity. Unfortunately overcrowding in prisons is not peculiar to Bangladesh. Prisons are overcrowded in the United Kingdom too. In some prisons here, conditions in which prisoners are held have been severely criticised. Nevertheless it is most unlikely that a sustainable finding of breach of Article 3 can be made against the United Kingdom. It is a question of degree and the threshold, as we have already said, is high. In assessing the relevant evidence we have to steer clear of hyperbole and emotive descriptions. Without in anyway seeking to doubt the veracity or the sincerity of the statement of the Chief Justice describing the condition of prisoners as "sub human", we have to satisfy ourselves that the description is correct for the purposes of Article 3. In this regard we are entitled to know the full context in which the statement was made and the reasons for its making. We do not have that information and the lack of that information must reflect in the weight we attach to the statement. We do not minimise the effect the overcrowded prisons will have on the appellant. We also accept that he will be detained in conditions that may well be "extremely poor". This will undoubtedly result in the ill treatment of the appellant. But ill treatment must reach a minimum level of severity before there is a breach of Article 3. The assessment of this minimum level is relative and must depend upon the circumstances of the case, as the Court ruled in Ireland v the United Kingdom 1979, 2EHRR25. In our judgement the prison conditions in which the claimant will be detained are not reasonably likely to be such as to amount to inhuman or degrading treatment. We have no reason to believe and the Adjudicator did not so find, that the claimant would be tortured in custody. The authorities would have no reason whatsoever to torture him. He has accepted his guilt before the Adjudicator and it is reasonable to assume that once arrested in Bangladesh, he will readily admit to the crime. In the circumstances there would be no need to use torture or other coercive means to "extract confession" from him. 
11.	This appeal is allowed.