C4/2004/2479 
Neutral Citation Number: [2005] EWCA Civ 366
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice 
Strand 
London, WC2 

Friday, 18th March 2005

B E F O R E:

LORD JUSTICE WARD 
 
LORD JUSTICE BUXTON 
 
MR JUSTICE WILSON 
 
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ZORIG BATAYAV
Claimant/Appellant
-v-
 
SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant/Respondent 
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MR C JACOBS (instructed by Dare Emmanuel) appeared on behalf of the Appellant 
MR T OTTY (instructed by Treasury Solicitors) appeared on behalf of the Respondent
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J U D G M E N T
1.	LORD JUSTICE BUXTON:  The appellant, Mr Zorig Batayav, is a citizen of the State of Russia.  He came to this country from the Russian Federation as long ago as 7th August 2001 and immediately claimed asylum in accordance with the Refugee Convention, and also claimed protection of Article 3 of the European Convention for the Protection of Human Rights.  Since that date, 7th August 2001, he has been continuously engaged, in one capacity or another, in the judicial processes of this country.
2.	I do not need to set out the steps that led to his case coming before this court on 5th November 2003 ([2003] EWCA Civ 1489).  By that stage he had not persisted in, and does not persist before us in, his claims under the Geneva Convention; his claim was limited to his claim for protection under Article 3.  The basis of that claim is that as a person of Tuvan (Mongolian) ethnic origin, he had refused to join the Russian forces because he was unwilling to participate in the military action then taking place in Chechnya.  As a result of that, he had been imprisoned, but had in some way managed to escape and make his way to this country.  On return to Russia he would therefore be immediately returned to serve what he accepts -- although he does agree with it -- was a regular prison sentence.
3.	His case under Article 3 is that conditions in Russian prisons are such that they inevitably entail a breach of Article 3 of the Convention.  I use the word "inevitably" quite deliberately because, as this court in the leading judgment of Munby J observed in Mr Batayav's first case, a person may be fearful of Article 3 treatment on two quite separate grounds.  First, that there is something about his particular case that will, or very likely will, lead the authorities to treat him in such a way as is inconsistent with Article 3.  The second category, which is the present case, is where the conditions generally for all prisoners are such that a sufficiently significant risk of Article 3 treatment is engaged in respect of any person who is imprisoned.  That distinction was taken by this court in Mr Batayav's previous application in paragraph 7 of its judgment, in which this court said:
"... in this latter category of case an applicant will only be able to demonstrate substantial grounds for believing that there is such a real risk if he can point to a consistent pattern of gross and systematic violation of rights under Article 3."  
4.	The reason for that distinction, and the use of the expression "gross and systematic", was explained by Laws LJ, giving the judgment of this court, in Hariri v Secretary of State [2003] EWCA Civ 807.  Laws LJ pointed out that the distinction was one of logic, and the reason for the expression "gross and systematic" was, in Laws LJ's words, which I venture to quote:
"Absent evidence to show that the appellant was at risk because of his specific circumstances, there could be no real risk of relevant ill-treatment unless the situation to which the appellant would be returning was one in which such violence was generally or consistently happening." 
5.	It is quite true that in Mr Batayav's own appeal Sedley LJ expressed some reserve about the particular language used in that statement of Laws LJ.  That was not the view, as I understand it, of the other members of the court.  However, be that as it may, it is clear that to establish an Article 3 case of the sort that Mr Batayav seeks to establish significant evidence must be given of conditions in the system that are universal, or very likely to be encountered by anyone who enters that system.  That point is of some importance at a later stage of this appeal.
6.	The court in Mr Batayav's first appeal was strongly influenced by the crucially important case, as they described it, that of Kalashnikov v Russia [2002] 36 EHRR 587, in the European Court of Human Rights.  The court pointed out that breaches of Article 3 might arise because it was the intention of the prison system to humiliate or debase its prisoners.  But, the court said, the possibility of a breach of Article 3 did not end there, because it might be the case that conditions generally were such that they went beyond, as the court put it at paragraph 95, the inevitable element of suffering or humiliation connected with a legitimate form of punishment, and amounted to inhumane treatment.
7.	The conditions in which Mr Kalashnikov had been held during the period from June 1995 until June 2000 were described by the court in some detail.  They can be summarised as saying that, first of all, gross overcrowding was endemic in the Russian system and that, quite apart from that, the particular prisoner had suffered from sleep deprivation, had contracted various diseases, and had not been given any privacy in toilet arrangements.  Importantly to the decision were concessions made by the authorities of Russia as to the overcrowding in the prisons and their claim that they were intending to improve that overcrowding and improve sanitary conditions, though they had not yet done so.  Those conditions, which the authorities of the Russian Federation at that time accepted, were held to fall below the standards required by Article 3 of the Convention.  It was therefore clear to this court that if conditions in Russia would still be the same as and when Mr Batayav was returned there as they had been at the time of which Mr Kalashnikov complained, then it would necessarily be a breach of this country's obligations under Article 3 to return him there.  
8.	It was, however, the Secretary of State's contention before this court that conditions had changed, and that there was a considerable body of evidence that indicated that conditions in Russian prisons, although not still satisfactory, were different from those that had been perceived in Kalashnikov: to the extent that it would not any longer be justified in contending, as Mr Batayav did and does, that to return him to prison in Russia would necessarily involve a breach of this country's Article 3 obligations.  This court therefore decided that the proper way of resolving the dispute was to remit the matter to the Immigration Appeal Tribunal for re-hearing on the whole of the evidence, giving liberty to both sides to adduce such further evidence as they had available to demonstrate the present position.  This court went on in paragraph 33 of its judgment:
"It will be for the Tribunal to determine, in the light of all the evidence, whether there are substantial grounds for believing that the appellant will face a real risk of treatment that violates Article 3 if returned to a Russian prison. Central to that investigation ... will be a consideration of the extent to which conditions in the Russian prison system have or have not improved since Kalashnikov." 
That was the process that was followed.  
9.	The Court of Appeal had expressly contemplated that the Secretary of State would make available to the Tribunal all the relevant country materials, and a comprehensive bundle of such materials was prepared and placed before the Tribunal.  We are told in the Secretary of State's skeleton, and not disputed, that the appellant's solicitors were invited to comment on the contents of that bundle one month prior to the hearing before the Tribunal, but they failed to do so.  The remitted application therefore came on before a new constitution of the Immigration Appeal Tribunal on 13th July 2004.  It is from that Tribunal's conclusions that this appeal is brought.  
10.	I have said enough about the background to that hearing, I think, to indicate that it was understood on all sides that the hearing was a substantial and significant inquiry into the particular question remitted by this court: that is to say, whether or not conditions had improved to the extent that it was not necessarily a breach of Article 3 to send Mr Batayav back to the Russian Federation.
11.	The Tribunal set out at considerable length the detailed matter that had been put before it and the conclusions that it reached from it.  It is only fair to the Tribunal, since, as I shall show in a minute, this case is really brought on the basis of lack of reasoning or lack of proper procedure on its part, to set out what it said about the materials it had before it and the views that it formed of it:   
"11.  We have been referred to a great deal of material post-dating the facts which were the subject of complaint in Kalashnikov, in order to enable us to make findings on the general circumstances in Russian prisons at the present time.  One important and wide-ranging document is the report of a visit to the Russian Federation carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).  That report was published in June 2003, although the visit on which it was based had taken place some eighteen months previously.  The published report, however, is accompanied by the Russian Government's response, which is not dated in any very obvious way but must follow the CPT's submission of the report in July 2002.  We have also looked at US State Department reports, CIPU reports, reports of relevant United Nations Committees in 2002 and 2003, an interim resolution of the Council of Europe's Committee of Ministers following the judgment in Kalashnikov, an Amnesty International report of 2002 and the most recent entry in Amnesty International's yearbook, the United Nations High Commissioner for Human Rights' Standard Minimum Rules for the Treatment of Prisoners, a letter to the European Union from Human Rights Watch, dated 19 March 2004, part of a UNHCR paper on claimants from the Russian Federation, dated May 2004, and other documents put before us by the parties.
12.  There can be no conceivable doubt that the general conditions in prisons in the Russian Federation have shown improvements in the period since Kalashnikov himself was detained.  For this reason, older materials are of very little value save for purposes of comparison.  The Human Rights Watch letter, which is generally critical of the human rights situation in the Russian Federation, says that 'As of today, the only institution that has seen truly significant reform is the prison system.'
13.  Another feature of the materials we have read is that they appear to show that the conditions in SIZOs are liable to be rather worse than those in other detention facilities.  It will be recalled that the majority of Kalashnikov's own detention was in a SIZO.  The Appellant's case, however, is based on the inevitability of him serving a prison sentence for crime.  Such sentences are not generally served in SIZOs, which are largely used for detention pending trial, although they may occasionally be used for holding sentenced prisoners before they are allocated to a penal colony.  One of the factors specifically mentioned by the Court in Kalashnikov was the length of time for which the Claimant had been held in poor facilities.  It is not, and indeed cannot be, part of the Appellant's case that he is at risk of being held for a long time in a SIZO.
14.  The evidence before us shows with great clarity that the Russian prison system no longer suffers the severe problems of overcrowding that were identified in Kalashnikov and by international observers in the late 1990s and a little later.  The amount of space available per prisoner now contrasts very favourably with that which Kalashnikov was allowed to occupy in his SIZO in 1995 to 1999.  The CPT delegation records at paragraph 45 that progress was being made in addressing the issue of overcrowding and recommends an allowance of 4m² per person.  In its reply, the Russian Government was able to say that in the Vladivostok SIZO 1, which the delegation had visited, the allowance was now 3.8m².  In the US State Department report for 2002, it is said that the introduction of the new Criminal Procedure Code (which came into force on 1 July 2002) had had the effect of 'virtually eliminating the problem of overcrowding in [SIZOs]'.  The delegation of the Russian Federation reporting to the Human Rights Committee of the United Nations in October 2003 summarised improvements made in Russian prisons since 1998.  Only three percent of detention centres (that is to say, SIZOs) were currently overcrowded compared with seventy percent in 2000.  Each detainee throughout the system had access to 4m² of living space.  A human rights service had been established to monitor the observance of human rights in the prison system.  The prison establishments were open to international inspection.  In commenting on the report, another member of the Committee remarked that although progress was commendable, some of the problems of prison conditions related to health and sanitation.  On 6 November 2003, the Human Rights Committee noted that it remained concerned about reports of poor hygiene and violence by prison officers in some places of detention, and encouraged the Russian Government to continue to make progress.  The US State Department report for 2003 (published February 2004) again records the virtual elimination of overcrowding, although there is reference to health concerns in detention facilities.  A minute from the British Foreign and Commonwealth Office, dated 9 June 2004, again records a fall in the Russian prison population.  So far as the health of prisoners is concerned:
'5.  Conditions in some prisons, and especially in pre-trial detention centres (SIZOs) remain very poor with overcrowding, poor diet and little exercise contributing to sanitation and health problems.  Deputy Head of the Prison Service, Alla Kuznetsova, said in October 2003 that almost three quarters of prisoners (590,000 people) suffered from serious health problems.  She said that one-third of inmates had mental problems, 26,000 had syphilis, 1,500 had hepatitis and 74,000 had TB.  Public health measures have had some effect in stemming the spread of TB (eg Deputy Minister Kalinin noted in November 2003 that the incidence of TB had reduced by 27% in 2003), but have not contained the spread of HIV.  HIV/AIDS infection rates now stand at around 37,000 prisoners, up from 5,000 in 2000.'"
12.	It will be seen from that, in particular at paragraph 14, that the Tribunal concluded that the evidence showed that the Russian prison system no longer suffered the severe problems of overcrowding that had been identified in the Kalashnikov case.  That was a conclusion that it reached having, as it said, looked at the material that was before it.  So far so good.  At paragraph 15 the Tribunal went on to say this:
"Ms Nicholas [counsel then representing Mr Batayav] conceded, as she had to, that overcrowding cannot now be seen as a major or universal problem in Russian prisons.  She submitted, however, that the remaining problems, in particular those relating to health, were such as to show that it would still be a breach of Article 3 to cause anyone to be subject to the prison regime in Russia."
13.	The submissions to this court, settled by different counsel, set out that the appellant did not agree with the concession made by Ms Nicholas, which he said should not have been made.  It did not seem to be understood that if that concession was indeed to be withdrawn, an application had to be made to the court to withdraw it: because, even in a jurisdiction where the Tribunal has a somewhat more interventionist role than perhaps in orthodox civil litigation, nonetheless it is entitled to take seriously a concession made no doubt after scrutiny of the evidence, by a responsible member of the bar.
14.	Today we are told that not only is the concession sought to be withdrawn, but also that in fact it had not been made at all.  We have been shown the skeleton arguments put before the Tribunal below by counsel.  
15.	I do not in fact need to go into this matter in any great detail.  I will, however, say that it seems to me clear from the way in which counsel expressed herself, particularly in paragraph 9 of her more expansive skeleton, that the Tribunal was very well justified in drawing the conclusion that she indeed accepted that the overcrowding in prisons was not "a major or universal problem".  Whether she made that concession or not, and whether she was right or wrong, in fact does not influence the case at all: because, as is plain from the passage that I have already read, the Tribunal had reached that conclusion by its own investigation, and before it got anywhere near to Miss Nicholas' concession.  The extensive passage set out above in which the Tribunal describes its sources and its findings preceded in their logical argument anything that Miss Nicholas had said, and in reporting her concession they recorded that they regarded it as inevitable on the evidence they had heard.  I can therefore pass on from that episode, despite it having taken up a good deal of time in this court and in previous exchanges, save for one point.  
16.	When I come to describe the criticisms that were made of the Tribunal's reasoning, it will be seen that they include an allegation that the Tribunal gave excessive weight to Miss Nicholas' concession, whether or not they were right in thinking it had been made at all, and, as seemed to be put at one point in the oral argument, had effectively not addressed their mind to the question remitted to them by this court simply because they thought it had been conceded by counsel.  It is quite clear from reading the determination as a whole that nothing was further from the case.  They clearly regarded this concession, as I regard it, as irrelevant to the careful review of the material that this court had told them to undertake.
17.	Having dealt with the overcrowding question, the Tribunal then did what Miss Nicholas said they should do; that is to say, to go on and look at the position with regard to the threat of disease.  They rightly pointed out that in the light of the guidance given by Laws LJ in Hariri, which I have already set out, the case on threat of disease was a great deal more difficult for the appellant to make.  That was because there was no suggestion that disease, as opposed to the overcrowding as it had understood to be at the time of Kalashnikov, was endemic or universal, and therefore, as the Tribunal held in paragraph 19, "it cannot be suggested today that every prisoner is necessarily going to suffer harm from the increased risk of disease".  That was an approach that was open to them on the evidence as to current conditions and difficulties in Russian prisons - evidence that I however readily accept, as the Tribunal did, gave no cause for complacency.  However, they concluded in these terms in paragraph 22 with regard to Mr Batayav:
"If the risk of his contracting various diseases is elevated by his being in prison, that is clearly not something which ought to be ignored, although it is right to say that we have no clear evidence of the level of any increase of risk.  We very much doubt whether there is anything in the evidence before us which would entitle us to say that there is a real risk that the Appellant will suffer from any of the diseases mentioned as a consequence of his detention in a Russian prison or penal colony."
That again was a conclusion that, in my judgement, they were entitled to reach.  
18.	It is important also to bear in mind when one is comparing the situation of a potential returnee like Mr Batayav with the case as it affected an actual prisoner, like Mr Kalashnikov, that the question for the courts and authorities of this country is indeed the likelihood of Mr Batayav suffering disease should he be returned to Russia.  Mr Kalashnikov was in a different case because he was a person already imprisoned who in fact had suffered disease and therefore could claim that very suffering, that very disease, as part of his Article 3 case.  The point is different, and has to be approached, in my respectful view, in the way that this Tribunal approached it, where one is looking at the future likelihood of disease occurring.
19.	So far therefore I, for my part, would see no failing in the Tribunal's reason or conclusions such as would engage this court, which is solely concerned with issues of law.  It is therefore necessary to look at how the appellant's case is put in this court.
20.	The nub of the grounds of appeal, leaving aside the point about the concession which I have already rejected, is to be found in paragraph 9 of the grounds:
"It is submitted that the findings of the Tribunal are not sustainable on the objective evidence.  The primary sources of objective material indicate that overcrowding remains a problem in the Russian penal system.  Accordingly the Tribunal has applied an erroneous approach to the evidence, such that the determination is flawed.  The determination has been designated a country guidance case and therefore will be followed by Adjudicators in the majority of cases.  In the circumstances it is submitted that the matter raises an issue of public importance, such that permission should be granted."
It was that consideration that caused a single Lord Justice of this court to give permission.  
21.	If we turn to the grounds as set out, it is plain that the first sentence is misconceived.  It is simply not a ground of appeal to this court that the findings of the Tribunal are not sustainable on the objective evidence.  The objective evidence in this case was extensive and manifold and it was for the Tribunal, unless it made an error of procedure, to determine which part of the evidence it accepted and which part it rejected.  Mr Jacobs, on being pressed by the court, said that indeed the Tribunal did make an error of law in that it did not subject the evidence to a sufficient scrutiny.  He supports that argument in particular by reference to the case in this court of S & others v Secretary of State for the Home Department [2002] INLR 416.  It is that case that accounts for the contention at the end of ground 9 of the grounds of appeal that it is of importance that the present determination has been designated a country guidance case.  
22.	S & others was indeed also a country guidance case in which this court said that, in normal terms, this court would not go behind the conclusions reached by a tribunal where the IAT did not subject its reasoning to particular scrutiny.  However, the court went on to say that because of the role played by country guidance cases in the general procedure of the tribunal system, creating what Laws LJ described as the anomaly in ordinary English law of a factual precedent, it was right that a safeguard in the creation of such precedents should lie in what Laws LJ described at paragraph 29 as "the application of the duty to give reasons with particular rigour".  The Lord Justice went on to say that the IAT did not have to deal literally with every point in evidence, but when it purported to give a ruling upon the state of affairs in a particular territory, it must see that its decision is "effectively comprehensive".
23.	I am bound to say, although I accept only as a footnote in the present appeal, that the status of country guidance cases and the role that they play, particularly in the appellate system, is probably going to need to be reviewed in the light of the comparatively recent restriction of the jurisdiction of the Immigration Appeal Tribunal itself simply to questions of law: rather than, as was the case at the time of S v Secretary of State for the Home Department, to questions of both law and fact.  However, such reconsideration has not yet taken place, and therefore it is clearly right that we should give careful consideration to the argument based upon S v Secretary of State for the Home Department in addressing this decision.
24.	In order to do that, Mr Jacobs took us through an analysis of the material that had been before the Tribunal, listed, as I have said, in its decision, and pointed to parts of it which appeared to say that overcrowding was still a problem and that there were problems with regard to health and other matters.  
25.	I do not intend to go through any of that in detail, or indeed at all.  We have had the benefit of reading the analysis in Mr Jacobs' skeleton, of reading the analysis is Mr Otty's skeleton, which analysed each of these items, and of hearing further argument by Mr Jacobs upon it.  It is quite clear to me that the complaints really go nowhere to undermine the essential conclusion of the Tribunal.  
26.	Mr Jacobs said that because this was a country guidance case, it was really necessary for the Tribunal to take every item in which any statement at all had been made inimical to its overall conclusion, and explain why it was not deflected by that statement from that conclusion.  That, I have to say, is putting far too high an obligation on the IAT.  The criticism that was made in S & others v Secretary of State for the Home Department went far wider than the claims made in this case.  Significant reports had not been referred to at all and there had been significant and serious omissions in the Tribunal's review of the material.  Nothing like that can possibly be said in this case.  I have already set out what the Tribunal said and, in my judgement, it approached the matter with the rigour that is required and reached conclusions that were open to it.  That is particularly so with regard to the overcrowding issue, where there was material before the Tribunal to demonstrate, and to demonstrate unchallenged, that the amount of space available to each prisoner had significantly improved.  True it is that observers said in terms that overcrowding remained a difficulty.  That may well be so, but the question is not that, but whether there had been a sufficient reduction in that problem to take it outside the ambit of Article 3 that was thought to follow of necessity in Kalashnikov.  The Tribunal was entitled on the material before it, which it quoted, so to find.  It was also entitled to make the findings that it did about the health problem, bearing in mind the particular issue in respect of that matter.  On the material before the Tribunal, therefore, I do not consider that they demonstrated the error of approach or failure of rigour that in the end had to be the only criticism in terms of law that the appellant could make.
27.	At a late stage of the process the appellant sought to put further materials before this court.  They consisted of a report by a Professor Bowring, an expert in Russian affairs, drawn up very recently, indeed dated not much more than a week ago, in which Professor Bowring referred to various further developments, referred to a number of other documents and gave an account of some of his own experiences as an observer of the Russian prison system.  
28.	No formal application was made to admit this evidence, which was of course a significant failing on the part of the appellant.  It was also completely unclear to me how the evidence could make any difference to the question that we have to decide, which is whether the Tribunal approached the evidence that was before it in a proper fashion.  If, as is now accepted, that is the question, and this court is not engaged simply on replicating the fact finding task of the IAT, then I am baffled as to how it can be relevant to that question that other material was not before the Immigration Appeal Tribunal.  The case of E & R was mentioned in this context, but that involved a completely different question of whether the question as put to the IAT itself had to be reviewed.  I therefore do not see that this material would assist us.  But even if it did I would have the gravest hesitation about introducing it into the case at this stage when at least Professor Bowring's views, and not all but at least some of the material that he adduces, was readily available at the time of the trial below and could have been adduced in that tribunal.  Even if a formal application had been made to adduce this material it would have failed under orthodox Ladd v Marshall principles.
29.	Despite all that, we have read it and we have had submissions on it from Mr Otty.  Because this is a human rights case, it is right that I should record my view at least that the material, even if admitted and even if we were simply replicating the Tribunal's fact finding role, would make no significant difference to the conclusions that the Tribunal properly reached.
30.	I would dismiss this appeal.  
31.	MR JUSTICE WILSON:  I agree. 
32.	LORD JUSTICE WARD:  I also agree.  The appeal is dismissed.
Order:  Appeal dismissed.  Assessment of the appellant's publicly funded costs.