RM (Young Chechen Male - Risk – IFA) Russia CG  UKAIT 00050
Date of hearing: 16 May 2006
Date Determination notified: 12 June 2006
|Secretary of State for the Home Department||RESPONDENT|
A young Chechen male will not as such be at real risk of persecution or a breach of Article 3 either on return to Russia, or on the rail link to Chechnya, or in Chechnya, and, as an alternative, has a viable internal relocation option in Ingushetia. However a Chechen, who is recorded as wanted by the Russian authorities in connection with or for supporting the rebels in Chechnya, will be at real risk on return at Moscow or St Petersburg Airports, and anywhere else in the Russian Federation. He will not however be a refugee if his own conduct is enough for Article 1F to exclude him.
This decision replaces MR (Chechen – Return) Russia CG  UKIAT 07562 as current country guidance on these issues.
"Other than the Adjudicator's reference to his report at paragraph 20, it is not clear what weight (if any) the Adjudicator attached to the report of Dr Galeotti. If she dismissed what he says, she should say so and explain why. The fact that he has not met the claimant is irrelevant, as is the fact that he did not appear to give oral evidence (it may not have been an approved expense) and the fact that the Adjudicator did not have sight of his instructions.
"The Adjudicator at paragraph 20 made comments about the evidence of the "country expert" which would not have justified completely discounting it: indeed she herself apparently accepted the submissions of the Presenting Officer that she should "not place too much weight on it". Having said that she needed to look at what the "country expert" said about the individual case, decide how far it was relevant to the Appellant's credibility, and take such account of it as she saw fit on that basis. It follows that there will need to be a full reconsideration of this appeal."
1. The Court bundle.
2. The Appellant's bundle
3. a. The Appellant's supplemental statement
b. The Appellant's further statement
4. The Respondent's bundle.
5. The country guidance in MR (Chechen – Return) Russia CG  UKIAT 07562 and other case law referred to in paragraph 16.
6. The Appellant's Representative's skeleton argument
7. US State Department report for 2005
8. Norwegian Refugee Council report of May 2005
9. Pravda article of 1 June 2004.
10. Appellant's statement in the 2002 appeal
11. Appellant's grounds of appeal in 2002
1. If the Appellant's claim were credible would he be at an real risk due to being wanted by the Russian authorities?
2. If he were not credible would he be at real risk as a young Chechen male?
3. Would he be at risk on return to Moscow or St Petersburg airports?
4. Would he be at real risk travelling from the airport to Chechnya.
5. Would he be at real risk in his home area in Chechnya
6. Would he have a viable internal relocation option in Russia, outside Chechnya, that would not be unduly harsh?
18. The appellant will face a difficult time on return to Chechnya but the evidence suggests that there is some limited support in the region and relative stability there despite the obvious difficulties with the security situation. It would not in our view arguably breach the appellant's human rights for him to be required to return. It would not expose him to inhuman or degrading treatment, having regard to the high threshold required to establish a claim under Article 3. Any interference with his private or family life would be proportionate and in pursuit of a legitimate aim (immigration control). Despite giving careful and sympathetic attention to the points made by the appellant, we are unable to assist him.
3.6.2 The conflict in Chechnya is currently the most serious on the territory of the former Soviet Union. The Russian government intervened in the Republic in 1999 after a short chaotic period of virtual Chechen self-rule after Russian troops withdrew in 1996. Much of the destruction of Grozny and other Chechen cities and towns was caused by indiscriminate use of heavy artillery and aerial bombing by the Russian military. However such attacks are now intermittent and the Russian response is becoming more targeted.
3.6.3 Despite Moscow's claims of "normalisation", fighting has continued with frequent attacks by militants on federal and local forces, especially in the highland south. Reports of human rights abuses remain high. There have been widespread and credible allegations of extra judicial killings, disappearances, torture, rape and unlawful detention by all sides.
3.6.4 Since the start of the Chechen conflict there have been widespread reports that both sides have killed or tortured prisoners. The Russian Armed Forces and police units are also reported to have routinely abused and tortured personals in holding facilities where federal authorities sorted out fighters or those suspected of aiding rebels from civilians. Federal forces and police units also reportedly ransomed Chechen detainees (and, at times, their corpses) to their families for prices ranging from several hundred to thousands of dollars.
3.6.5 Although, the statistics from both the authorities and NGO Memorial appear to point to a decline in abductions and disappearances in 2005 they continue to occur. Some of these disappearances can be attributed to federal forces or pro-Moscow Chechen forces.
3.6.6 During 2005 there was a continued shift in Russian tactics away from operations involving Russian military formations and towards police operations and from the use of federal forces toward reliance on paramilitary and police units of the Chechen Republic. There were fewer mopping up operations, known as "zachistky" in 2005 than in previous years, although more targeted operations, such as night raids continued. According to the NGO Memorial in some cases zachistky were accompanied by abductions, looting and beatings, most zachistky were conducted with no serious human rights abuses. According to Amnesty International many of the human rights abuses in Chechnya occurred during targeted raids by federal and pro Russian Chechen forces.
3.6.7 Chechen security forces were nominally under the control of Chechen civilian authorities but also often conducted operations jointly with Russian federal forces.
3.6.8 Amnesty International reported that in most cases the Russian and Chechen authorities failed to conduct prompt, independent and thorough investigations into allegations of human rights violations against the civilian population.
3.6.9 However some action has been taken by the Russian authorities. According to statistics compiled by the general prosecutor' office, since 1999, 103 verdicts have been rendered in cases involving federal servicemen charged with crimes against civilians. Of these, 27 were given prison sentences of from 1 to 18 years in prison, 8 were acquitted and 20 were amnestied. Sentences in the remainder were suspended or the guilty were fined. Government statistics also showed that 34 law enforcement officers were charged with crimes against civilians, with 7 sentenced to prison and arrested, convicted and given suspended sentences……
3.6.11 Sufficiency of protection. As this category of claimants' fear is of ill-treatment/persecution by the state authorities they cannot apply to those authorities for protection.
3.6.12 Internal relocation. All adults in the Russian Federation are issued with internal passports, which they must carry while travelling, and they are expected to register with the local authorities within 90 days of their arrival in a place. Corruption in the registration process in local police precincts was a problem and although the fees for permanent and temporary registration remained low, police demanded bribes when processing registration applications and during the spot checks for registration documentation.
3.6.13 The current advice from the FCO is that any returnee who is the holder of a valid Russian passports (indicating former residents of Russian territory) should be able to resettle in any of a number of regions in the Russian Federation, even after a prolonged absence.
3.6.14 In general, as this category of claimants' fear is of ill-treatment/persecution by the state authorities, relocation to a different area of the country to escape this threat is not feasible and Chechens who fear the Russian authorities will not be able to relocate internally. However internal relocation is an option for those Chechens who do not fear or are not wanted by the federal authorities. The IAT found in a number of cases that although Chechens face societal discrimination and had difficulties finding accommodation and employment these difficulties in a round do not make it unduly harsh for a person to relocate internally.
3.6.16 Conclusion. The Russian authorities have committed serious human rights abuses including torture, rape, kidnappings and extra judicial executions in Chechnya. The Chechen rebels have also been involved in serious human rights violations including major acts of terrorism outside Chechnya and summary executions of civilians. Those who are involved or are suspected of being involved with Chechen rebels, face a serious risk of persecution from the federal authorities. Where any individual is able to demonstrate that they are at serious risk of facing such persecution on account of their activities a grant of asylum will be appropriate.
3.6.17. However, Chechens from Chechnya who simply fear the general situation can internally relocate to another area of the Russian Federation and will not therefore qualify for a grant of asylum all humanitarian protection.
"Establishing facts about Chechens that have been returned to the Russian Federation from other countries is difficult as no independent body or organisation monitors this group. According to the Danish Support Committee for Chechnya, both the men returned from Denmark in 2005 were temporarily detained upon arrival in Moscow. The release of one of the men is attributed to the fact that he had relatives in Moscow who protested against the detention. This person is currently living "underground" in Moscow. The committee has not had any contact with the other person after his return. The person referred to above who was returned to Russia by Swiss authorities, claims that he was ill treated by Russian law enforcement officials upon arrival. The man told the Swiss Refugee Council that he was apprehended and questioned by the police at the airport in Moscow and then brought to a police station where he was ill treated before he was released after 24 hours. Allegedly he had to give the police officers money in order to be released and was told by the police officers that he had been lucky and that he should not stay in Moscow. A Chechen asylum seeker who arrived in Norway after having been detained in Ukraine claims that he was told by Ukrainian law enforcement officials that none of the Chechens that were deported and handed over to Russian law enforcement officials reached Russia in one piece.
According to a report in 2002 by the Norwegian Helsinki Committee, the problems returnees have faced have been similar to the difficulties experienced by the Chechen population in general, except that young male returnees will be interrogated by the police about possible guerilla affiliations and that any temporary registration of residence of the returnees will be cancelled. This assessment is from late 2002 before a series of new grave terrorist attacks in Moscow and Beslan. In February 2004, Human Rights Watch expressed concern that the Chechens cannot, or are not able to safely access, the necessary documentation to ensure a safe return. In March 2004, Amnesty International wrote that most Chechen asylum seekers rejected in European countries are returned to Moscow and that information available suggested that many of them are immediately subject to thorough questioning at Moscow Airport. Some of the returned Chechens are allegedly also deprived of money or other belongings by Russian security officers. In a statement from May 2004, Svetlana Gannushkina emphasised that even though she could not document that Chechens were persecuted exactly for having been to a foreign state, asking for asylum and deported to Russia, this did not mean that there were no such cases……"
"[ ] is correct that there is no indication of ethnicity in Russian internal or foreign passports. However, I also agree that Chechen names are reasonably distinctive and most of the airline staff I work with can identify a Russian passenger's ethnicity with very little difficulty. The other obvious giveaway is the place at birth. I have seen no evidence that Chechens are subjected to any additional security checks when entering or departing from Russia. Certainly at Domodedevo and Sheremetevo they are treated in exactly the same way as other passengers."
However this appears to have been qualified by a subsequent fax which states that:
"On question 8, I've checked with one of our Russian staff members, who says that nationality (ie ethnicity) does not appear in either Russian foreign or Russian internal passports. It does appear in old Soviet passports. But Chechen faces and names are quite distinctive, so it is entirely possible that they could be singled out for checks."
"A Chechen deported from Germany to Russia, only to have his money, jacket and suitcase taken by immigration officials on arrival as a bribe because he did not have a proper passport. A few days later he was forced to go into hiding after police came looking for him."
"In Chechnya and elsewhere I emphasised to my interlocutors that the Chechen people have many friends throughout the world who support their desire to live in a peaceful society governed by the rule of law. I came in part to convey the distress felt by many who had witnessed the devastation inflicted on the Republic and who continue to witness the ongoing violence wrought on its citizens….. I noted that welcome physical reconstruction appeared to be under way in Grozny and that political structures were being put in place to normalise the situation….. I nonetheless also stressed that I had very serious concerns about the integrity of certain institutions, especially in the area of law enforcement. Two phenomena are particularly disturbing: the use of torture to extract confessions and information, and the intimidation of those who make complaints against public officials. There can be little doubt that these phenomena are more than allegations but have considerable basis in fact…… I left Chechnya with the distinct impression that, despite ongoing political and physical reconstruction, the Republic has still not been able to move from a society ruled by force to one governed by the rule of law….. There is no question of that the Federal Authorities are seized with his issue and are aware of the imperative need to assist Chechnya in addressing its very serious shortcomings in this regard."
A Russian soldier who confessed to killing three Chechen civilians was sentenced today to 18 years in prison. A military court in Rostov-on-Don in southern Russia found Aleksei Krivoshonok guilty of murdering the three civilians at a road block outside the village of Staraya Sunzha near Grozny in November 2005. Reports say the sentence was the heaviest yet to be handed down to a Russian serviceman found guilty of involvement in what human rights activists say are widespread abuses by the military in Chechnya.
"The authority of this court has been lent, through the decision in Hariri… to formulations that treatment which is "frequent" or even "routine" does not present a real risk to the individual unless it is "general" or "systematic" or "consistently happening"…… Great care needs to be taken with such epithets. They are intended to elucidate the jurisprudential concept of real risk, not to replace it….. There is a danger if Hariri is taken too literally, of assimilating risk to probability. A real risk is in language and in law something distinctly less than a probability, and it cannot be elevated by lexicographic stages into something more than it is."
13. In England and Wales, the Court of Appeal in E and another v Secretary of State for the Home Department  EWCA Civ 1032,  QB 531 declined to adopt what may, without disrespect, be called the Hathaway/New Zealand rule. It was argued for the appellants in that case (see para 16 of the judgment of the court given by Lord Phillips of Worth Matravers MR) that
"The 'unduly harsh' test is the means of determining whether an asylum seeker is 'unable to avail himself of the protection of' the country of his nationality. The protection in question is not simply protection against persecution. It is a level of protection that secures, for the person relocating, those benefits which member states have agreed to secure for refugees under articles 2 to 30 of the Refugee Convention."
In paragraphs 23-24 of its judgment the court said
"23. Relocation in a safe haven will not provide an alternative to seeking refuge outside the country of nationality if, albeit that there is no risk of persecution in the safe haven, other factors exist which make it unreasonable to expect the person fearing persecution to take refuge there. Living conditions in the safe haven may be attendant with dangers or vicissitudes which pose a threat which is as great or greater than the risk of persecution in the place of habitual residence. One cannot reasonably expect a city dweller to go to live in a desert in order to escape the risk of persecution. Where the safe haven is not a viable or realistic alternative to the place where persecution is feared, one can properly say that a refugee who has fled to another country is 'outside the country of his nationality by reason of a well-founded fear of persecution'.
24. If this approach is adopted to the possibility of internal relocation, the nature of the test of whether an asylum seeker could reasonably have been expected to have moved to a safe haven is clear. It involves a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker. What the test will not involve is a comparison between the conditions prevailing in the safe haven and those prevailing in the country in which asylum is sought….."
20. I would accordingly reject the appellants' challenge to the authority of E and dismiss all four appeals so far as they rest on that ground. It is, however, important, given the immense significance of the decisions they have to make, that decision-makers should have some guidance on the approach to reasonableness and undue harshness in this context. Valuable guidance is found in the UNHCR Guidelines on International Protection of 23 July 2003. In paragraph 7 II(a) the reasonableness analysis is approached by asking "Can the claimant, in the context of the country concerned, lead a relatively normal life without facing undue hardship?" and the comment is made: "If not, it would not be reasonable to expect the person to move there". In development of this analysis the Guidelines address respect for human rights in paragraph 28:
"Respect for human rights
Where respect for basic human rights standards, including in particular non-derogable rights, is clearly problematic, the proposed area cannot be considered a reasonable alternative. This does not mean that the deprivation of any civil, political or socio-economic human right in the proposed area will disqualify it from being an internal flight or relocation alternative. Rather, it requires, from a practical perspective, an assessment of whether the rights that will not be respected or protected are fundamental to the individual, such that the deprivation of those rights would be sufficiently harmful to render the area an unreasonable alternative."
They then address economic survival in paragraphs 29-30:
The socio-economic conditions in the proposed area will be relevant in this part of the analysis. If the situation is such that the claimant will be unable to earn a living or to access accommodation, or where medical care cannot be provided or is clearly inadequate, the area may not be a reasonable alternative. It would be unreasonable, including from a human rights perspective, to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence. At the other end of the spectrum, a simple lowering of living standards or worsening of economic status may not be sufficient to reject a proposed area as unreasonable. Conditions in the area must be such that a relatively normal life can be led in the context of the country concerned. If, for instance, an individual would be without family links and unable to benefit from an informal social safety net, relocation may not be reasonable, unless the person would otherwise be able to sustain a relatively normal life at more than just a minimum subsistence level.
If the person would be denied access to land, resources and protection in the proposed area because he or she does not belong to the dominant clan, tribe, ethnic, religious and/or cultural group, relocation there would not be reasonable. For example, in many parts of Africa, Asia and elsewhere, common ethnic, tribal, religious and/or cultural factors enable access to land, resources and protection. In such situations, it would not be reasonable to expect someone who does not belong to the dominant group, to take up residence there. A person should also not be required to relocate to areas, such as the slums of an urban area, where they would be required to live in conditions of severe hardship."
These guidelines are, I think, helpful, concentrating attention as they do on the standards prevailing generally in the country of nationality. Helpful also is a passage on socio-economic factors in Storey, op cit, p 516 (footnotes omitted):
"Bearing in mind the frequency with which decision-makers suspect certain asylum seekers to be simply economic migrants, it is useful to examine the relevance to IFA claims of socio-economic factors. Again, terminology differs widely, but there seems to be broad agreement that if life for the individual claimant in an IFA would involve economic annihilation, utter destitution or existence below a bare subsistence level (Existenzminimum) or deny 'decent means of subsistence' that would be unreasonable. On the other end of the spectrum a simple lowering of living standards or worsening of economic status would not. What must be shown to be lacking is the real possibility to survive economically, given the particular circumstances of the individual concerned (language, knowledge, education, skills, previous stay or employment there, local ties, sex, civil status, age and life experience, family responsibilities, health; available or realisable assets, and so forth). Moreover, in the context of return, the possibility of avoidance of destitution by means of financial assistance from abroad, whether from relatives, friends or even governmental or non-governmental sources, cannot be excluded."
"The living conditions for the tens of thousands of Chechens remaining in Ingushetia vary from difficult to unbearable, with many inhabiting overcrowded, dank, dilapidated buildings that enable diseases like tuberculosis and pneumonia to flourish."
"While the situation now in Chechnya has become quieter and many displaced families are making their way home voluntarily, some 36,000 people still remain in exile in the nearby republics of Ingushetia and Dagestan. Some 38,000 within Chechnya itself are also still unable to return to their own homes. Humanitarian and reconstruction needs retain their urgency and human rights abuses still occur on a significant scale. Some 800,000 of Chechnya's estimated 1.1 million people are recognised by the UN as being especially vulnerable."
Although Chechens and other ethnic minorities face societal discrimination in the Russian Federation and often have difficulties finding accommodation and employment, these difficulties on their own do not make it unduly harsh for a person to internally relocate. In general it is not unduly harsh for members of ethnic minority groups who are not wanted by the Federal authorities to internally relocate to another part of the Russian Federation.
International organisations estimated that the number of IDPs and refugees who left Chechnya as a result of the conflict reached a high of approximately 280,000 in the spring of 2000. At various times during the conflict authorities restricted the movement of persons fleeing Chechnya and exerted pressure on them to return there. At the year's end the Office of UNHCR estimated that 26,155 IDPs remained in Ingushetia in private accommodations and in temporary settlements.
In Ingushetia, High Commissioner Guterres visited the Berd-Yurt settlement in the Sunzha district, which houses more than 100 IDP families who want to remain in Ingushetia. During his visit, the High Commissioner also met with local government representatives. As of 31 January 2006, some 26,000 IDPs from Chechnya had been registered by a UNHCR implementing partner for assistance in Ingushetia.
1. 05/09/2001 1st interview
2. 03/04/2002 1st written statement
3. 2002 1st grounds of appeal
4. 08/08/2003 2nd written statement
5. May 2004 2nd interview
6. Undated chronology of events
7. Undated response to refusal letter
8. 01/10/2004 oral evidence to Adjudicator
9. 10/01/2006 3rd written statement
10. 10/05/2006 4th written statement
11. 15/05/2006 oral evidence to Tribunal
"I confirm that Madaev Ramzan (sic) actively helped Chechen resistance forces. He is a convinced supporter of the independent Chechen state."
The appeal is dismissed on asylum grounds
The appeal is dismissed on human rights grounds
Signed Dated 5 June 2006
Senior Immigration Judge Batiste
Approved for electronic transmission