H-AS-V1

Heard at Field House

[2003] UKIAT 00073 C (Russia)
On 1 July 2003

IMMIGRATION APPEAL TRIBUNAL

                                                                   Date written Determination notified:

                                                                                     16.09.03
Delivered orally in Court

Before:

Mr J Barnes
Mr M G Taylor CBE
Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

APPELLANT

and

RESPONDENT 

Representation:

For the Appellant:		Mr D Saville, Home Office Presenting Officer 
For the Respondent:	Mr A Briddock of Counsel instructed by Bart 			Williams & Co Solicitors

DETERMINATION AND REASONS

1.	The Appellant is a citizen of Russia born on 2 June 1981 who arrived in the United Kingdom on 20 April 2002 with a visit visa valid until 15 October 2002.  Shortly after admission he claimed asylum on 29 April 2002.  His asylum application was refused for the reasons set out in a letter dated 19 June 2002.  On 16 July 2002 the Secretary of State issued a notice of refusal to grant asylum noting that leave to remain expired on 15 October 2002.  The Appellant appealed against that decision on both asylum and human rights grounds.  His appeal was heard on 1 November 2002 by Mrs N A Baird, an Adjudicator, who dismissed his appeal on asylum grounds but allowed it on human rights grounds under Article 3 of the European Convention.

2.	The Secretary of State appeals with leave to the Tribunal against that decision.  There is no appeal on behalf of the Respondent against the dismissal of his asylum appeal.

3.	At the hearing before us Mr Saville relied only on the third ground of appeal which is as follows:

“The Adjudicator has not adequately reasoned why internal flight would not be possible.  The Appellant had gained a visa within Russia and this would suggest that the authorities had no interest in him on a national level, any potential threat is only local.”

4.	The Adjudicator had found that the Respondent, whose home area was in a suburb of Moscow, had on 26 May 2001 become involved in an argument with a policeman who had attempted to entice his girlfriend from him when they were out together in a club.  The policeman threatened the Appellant and thereafter carried out his threats, firstly by having them both taken to the police station where the Appellant was detained and beaten, subsequently requiring hospital treatment.  His girlfriend had been raped and had subsequently left the area and he could not trace her.  The Respondent made a formal complaint about the conduct of the policeman but all efforts to pursue this were persistently blocked by superior officers up to the level of the chief of the local police department.  Thereafter the Respondent was harassed with threats that a false charge of drug dealing would be made against him although there is no evidence that that in fact took place.  His father, who was assisting him, was attacked in January 2002 but thereafter nothing further happened and he and his father visited Finland for a break in late March with appropriate exit visas.  After their return, the Respondent was on 29 March 2002 illegally arrested and taken to the police station where he was again beaten in an effort to make him withdraw his complaint.  He refused to do so and he was then taken by the policeman concerned and some of his colleagues to a car with a view of taking him to a location where he could be killed, but he escaped from the moving car as they were passing a police post and ran off.  He and his father then went into hiding until they were able to arrange a visa from the British Embassy and to leave the country on 20 April 2002.  Subsequent to his arrival in the United Kingdom he had received two summonses to appear at the police station as a witness on 6 and 11 July 2002.

5.	He was found to be credible in all these claims by the Adjudicator and those findings are not challenged.  Mr Saville accepted the Adjudicator’s finding that the treatment to which the Respondent had been subjected was persecution by the state.  The Adjudicator dismissed the asylum appeal because no Refugee Convention reason was identified.

6.	The Adjudicator said at paragraph 68 of her Determination that she had taken into account the fact that the Respondent and his father managed on two occasions to procure visas to leave the country and accepted that this could be indicative of the authorities having no interest in them.  In allowing the appeal on human rights grounds she said this at paragraph 70 of the Determination:

“It seems to me to be clear on the objective evidence that the Appellant could not return to Russia and live in another area because of the registration system.  He said the police who were persecuting him would know he had returned and he would be at risk of arrest and further ill-treatment.  I think this fear is justified.  I think the Appellant has established to the standard of proof required that there is a reasonable likelihood that his rights under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms would be breached if he were returned to Russia.”

7.	As we have noted, Mr Saville challenged the finding that the internal relocation alternative was not open to the Respondent.  It was his submission that the Respondent’s fear was localised to the actions of a specific rogue police officer, in respect of whose behaviour some of his colleagues supported him and his superiors had not been prepared to permit the complaint as to the policeman’s conduct properly made by the Respondent to go forward.  

8.	Both advocates agreed that the issues before us were whether the evidence supported the Respondent’s claim that there was a reasonable likelihood wherever he went in Russia that the policeman would seek to and would be able to trace him with a view of carrying out further acts in breach of his human rights under Article 3 of the European Convention; secondly , if there was no such reasonable likelihood, would it be unduly harsh to expect the Respondent to relocate within his own country instead of seeking surrogate international protection.  

9.	The Respondent is recorded as saying in evidence before the Adjudicator that there was a network in Russia where everyone was registered on a computer and that this was available through a network of police stations throughout the whole country.  If you moved you had to register in the new district and if you did not do so you could not work or study.  All citizens had to carry their internal passports around with them and were subject to spot checks.  He could not live safely in another area of Russia because of this registration system.  

10.	As we have noted above the Adjudicator accepted this on the basis that it was clear from the objective evidence although she does not identify the objective evidence on which she relied, simply referring to the Respondent’s representative before her having set out some of the objective evidence in her skeleton argument referring to the mandatory registration system.

11.	The first issue with which we are concerned, therefore, turns on whether there is objective evidence to support the Respondent’s claim.  

12.	Mr Saville referred us to paragraphs 6.30-6.32 of the April 2003 CIPU Assessment on Russia.  We set out those paragraphs in full:

“6.30	People who have a well-founded fear of persecution from the local authorities in one of the regions of the Russian Federation, without the involvement or the complicity of the federal authorities, may, in principle, find effective protection elsewhere in Russia.  However, such an alternative may be limited due to the cost of moving, the undeveloped housing market, and above all by the enforcement of strict registration regulations or practices in parts of the country.  Despite constitutional protections for freedom of movement, the government places some limits on this right, and some regional authorities, most notably the city of Moscow, restrict movement in particular by denying local residency permits to new settlers from other areas of the country.  

6.31	Although new rules were justified as a notification device rather than a control system, their application has produced many of the same restrictive results as the Soviet era propiska (pass) regulations.  While citizens are free to travel within Russia, the government imposes registration requirements on domestic travel.  All adults are issued with internal passports, which they must carry while travelling and use to register with local authorities for visits of more than three days (in Moscow, for visits of more than 24 hours), although travellers not staying in hotels usually ignore this requirement.  These internal passports are also required for obtaining many governmental services.  Citizens must register to live and work in a specific area within seven days of moving there; the fees for permanent and temporary registration remain low.  Corruption in the registration process in local police precincts is a problem.  Police demand bribes in processing registration applications and during spot checks for registration documentation.  Meanwhile, lack of registration leads in practice to the deprivation of most civil, social and economic rights.  People may not be admitted to public services, such as free medical services, education, pensions, child and unemployment allowances, unless they hold registration at their place of residence, and employers are required to hire only individuals holding registration in their place of residence.  While federal law provides for education for all children in the Russian Federation, regional authorities frequently deny access to schools to the children of unregistered persons, asylum seekers and migrants.

6.32	Russian citizens changing residence in Russia, as well as people with a legal claim to citizenship who decide to move to Russia from other former Soviet republics, often face enormous difficulties or are simply not permitted to register in some cities.  There is no uniform procedure on the registration of residence in Russia; each region and republic has its own regulations, the application of which is often arbitrary or racially motivated.  The United Nations High Commissioner for Refugees (UNHCR) and refugee rights non-governmental organisations have cited Stavropol, Krasnodar, Moscow, and St Petersburg as being the least open to migrants.  It is not unusual for dark-skinned persons to be stopped at random and for officers to demand bribes from those without residence permits.  Some (but not all) of the Russian regions which implement registration regulations in a less strict manner are located in the far north of Eurasia, where the hard climatic conditions, the remoteness from the central regions of Russia and the severe economic situation may make it difficult for people to establish themselves there.  Meanwhile, the government and residents of Moscow and other large cities defend registration as necessary in order to control crime, to keep crowded urban areas from attracting even more inhabitants, and to gain revenue.  However, another major factor has been a desire to shield themselves from the wave of refugees and internally displaced persons fleeing the numerous ethnic conflicts on the territories of the former Soviet Union.”

13.	It was Mr Saville’s submission to us that by reason of the localised nature of the adverse treatment of the Respondent, there was no evidence that the officer concerned would be prepared to seek to follow the Respondent, having achieved his object of stopping the Respondent continuing with his complaint against him.  There was no evidence there was a reasonable likelihood that the officer would find out if the Respondent returned.  There was no finding that the Respondent had been charged with any offences in his home area although the officer had threatened to make drugs charges against him if he persisted with his complaint as to his treatment.  We note that the Adjudicator details his evidence as to this at paragraphs 14 and 15 of the Determination, saying that he was summonsed to the police station and interrogated on this basis on occasions in November and December 2001, but that did not lead to any formal charge being laid and the Respondent is recorded as saying at paragraph 15 that he knew that they were just trying to use scare tactics on him to try to get him to withdraw his complaint.  The two court summonses accepted by the Adjudicator simply required him to attend at the police station “as a witness” and there was no evidence as to the nature of the matters about which he would be questioned.  The ability of the Respondent and his father to obtain exit visas on two separate occasions during 2002 pointed to the fact that he was of no adverse interest to the Federal Russian authorities.

14.	For the Respondent Mr Briddock pointed out that there was no challenge in the grounds of appeal to the finding that there was state persecution and, although he accepted that it did not necessarily follow from this that the Respondent would be persecuted elsewhere in Russia by the state given the particular facts, it was his primary submission that this would be the case.  He relied on the objective evidence of general corruption and of gross human rights abuses on the part of the police force although he did not suggest that the Respondent was being generally sought by the authorities.  Nevertheless he had offended a local policeman to the point where he and his colleagues were prepared to kill him in order to suppress the case that he was seeking to pursue.  Due to the state registration system the probability was that he would have to register if he lived elsewhere in Russia and this would lead to a real risk that his persecutors in his former local area would be able to find him wherever he was.  Asked to point us to the evidence of such an ability to trace the Respondent, Mr Briddock frankly said that he was asking us to take a leap of faith that the registration requirements lead to a sharing of information federally to which his local police force would have access.  Asked what evidence there was that the local police officer would have any interest in pursuing him at this stage, he said that he relied on the degree of corruption which exists in the police force.  He accepted however that there was no objective evidence that Russian local authorities shared information as to registration in their areas with the former place of residence but asked that we should assume there was a reasonable likelihood that this will happen.  He also placed reliance on the fact of the summonses issued in July 2002 as showing that there was some continuing interest in the Respondent on a local basis although there was no evidence at all as to what information the police were seeking from him “as a witness”.  He submitted that there were so many uncertainties that they should be weighed in favour of the Respondent and that it should be accepted that he would be sought outside his home area so that internal flight was not available to him.  

15.	As to the test of reasonableness of internal relocation, he submitted that it was a very low standard to be applied in favour of the Respondent.  The use of the words “in principle” in paragraph 6.30 of the CIPU Assessment as to the possibility of relocation were, he suggested, indicative of the fact that such was not readily available.

16.	Even though an applicant may have a genuine fear of persecutory treatment in his home area, as has this Respondent, he will not be entitled to claim surrogate international protection if there are other parts of his own country where he may safely live and it would not be unreasonable to expect him to go there.  We accept the guidance given in the judgments in Karanakaran [2000] Imm AR 271 that the task for us is to evaluate the evidential material before us.  This applies both to the question of whether there are other parts of his own country to which the Respondent may safely go and also whether it would be reasonable for him to do so.  As to the first question, we note from the CIPU Assessment that at 1 January 2002 the estimated population of the Russian Federation was in excess of 143 million people.  The Respondent is not suggested to be from an ethnic minority in Russia or to have experienced any difficulties whatsoever living in his country prior to the event in May 2001 which triggered the sequence of events which led him to leave.  His ability to leave with appropriate exit visas on two occasions during 2002 does, it seems to us, demonstrate that he is of no adverse interest to the authorities as such, beyond the adverse local interest in him on the part of the police officers who have sought to prevent him from pursuing a complaint about their conduct.  Save for these specific officers, there has been no positive action against him by other police officers locally although we accept that there has been the passive action of preventing a proper investigation of his complaint.  We are therefore satisfied that his fear is indeed local to his former place of residence and we note that by inducing him to abandon it the officers concerned have achieved their objective.  Looking at the CIPU Assessment which we have set out above, and which is more detailed than, but in a similar vein to what is said in the current United States State Department Report to which we were also referred, it is clear that Russian citizens are required to carry an internal passport which they may be required to produce, and that if they stay beyond a very short time in parts of the country in which they are not resident they will be required to register their presence.  This is a matter of practice and contrary to the constitutional protections for freedom of movement.  It appears that the government limits placed on this right are in relation to the requirement to carry an internal passport and to produce it on demand.  There is, however, a further degree of local control in that “some regional authorities” restrict movement by denying local residence permits to new settlers from other areas of the country.  It is clear that this is driven by their own requirement to avoid overcrowding and the assessment makes it clear that it has particular application to the cities named in paragraph 6.32 but that the position varies from region to region.  There is no suggestion in the background evidence that even those cities which are least open to migrants routinely notify former places of residence of a registered change to residents in their area.  It is a form of control driven by their perceived needs to prevent overcrowding and general migration rather than as part of an overarching state apparatus to check the movements of Russian citizens.  It seems to us that this follows from the fact that such local requirements are in breach of the Russian constitution and provisions for freedom of movement.  We note further that the implementation of such registration requirements is a matter for the local regions in question and is not universal throughout Russia. 

17.	The Adjudicator’s finding that the objective evidence supports the claim that the Respondent could not return and live in another area because of the registration system is unreasoned.  It contains no analysis of the objective evidence.  For that reason we do not regard the Adjudicator’s finding in this respect as sustainable on the basis of her reasoning and it is proper to substitute our own finding based upon the submissions made to us today and a proper consideration of that objective evidence.

18.	Given the localised nature of the adverse interest in the Respondent, in respect of which there is no credible evidence of any continuing interest now that the threat of his complaint about police conduct has been lifted by his departure, the general constitutional provision for freedom of movement and the uneven local registration requirements imposed by local authorities in Russia on new residents, we are satisfied that it would be open to the Respondent safely to relocate to another part of his country.  

19.	The second consideration is whether it would be unreasonable to expect him to do so, in the sense that it would be unduly harsh to require him to relocate.  In Robinson v Secretary of State for the Home Department [1997] Imm AR 568 the court said that the unduly harsh test was the correct one and we do not accept Mr Briddock’s submission that it imposes a very low standard.  The “unduly harsh” test was described in Robinson in the judgment of the Master of the Rolls at paragraphs 18 and 19 in the following terms:

“18.	In determining whether it would not be reasonable to expect the claimant to relocate internally, a decision maker will have to consider all the circumstances of the case against the background that the issue is whether the claimant is entitled to the status of refugee.  Various tests have been suggested.  For example, (a) if as a practical matter (whether for financial, logistical or other good reason) the ‘safe’ part of the country is not reasonably accessible; (b) if the claimant is required to encounter great physical danger in travelling there or staying there; (c) if he or she is required to undergo undue hardship in travelling there or staying there; (d) if the quality of the internal protection fails to meet basic norms of civil, political and socio-economic human rights.  So far as the last of these considerations is concerned, the preamble to the Convention shows that the contracting parties were concerned to uphold the principle that human beings should enjoy fundamental rights and freedoms without discrimination. In Thirunavukkarasu, Linden JA, giving the judgment of the Federal Court of Canada, said at page 687: ‘Stated another way for clarity, would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?’

19.	He went on to observe that while claimants should not be compelled to cross battle lines or hide out in an isolated region of their country, like a cave in the mountains, a desert or jungle, it will not be enough for them to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there.”

20.	The only reason put forward by the Respondent for not being able to live in another part of Russia was the registration system, as recorded at paragraph 44 of the Adjudicator’s Determination, and that is endorsed by what the Adjudicator records at paragraph 70 of her Determination, which we have already set out above.  There is, accordingly, no evidence beyond that which appears in the CIPU Assessment which we have quoted on the issue of reasonableness of relocation and, given the fact that there are areas in the Russian regions which implement registration regulations less strictly than in some of the major cities, we are not persuaded on the evidence that it would be unreasonable to expect the Respondent to relocate to an area where he would be safe.  

21.	For the above reasons, the appeal of the Secretary of State is allowed.  

J BARNES
VICE PRESIDENT