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Cite as: [2002] UKIAT 02544, [2002] UKIAT 2544

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AP (Return) Estonia [2002] UKIAT 02544

HX/64238-2000

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 25 April 2002

Date Determination notified: 11 July 2002

Before

Mr J Barnes (Vice President)

Mr M W Rapinet

Mr P Rogers JP

Between

Secretary of State for the Home Department AP	APPELLANT
and
AP	RESPONDENT

Mr J Jones, Home Office Presenting Office for the Appellant

Mr S Symonds, representative for Refugee Legal Centre (London) for the Respondent

DETERMINATION AND REASONS

The Respondent was born on 18^th August 1969 at Bryansk in the former Union of Soviet Socialist Republic and is of Russian ethnicity. In 1975 when he was five or six years of age, his parents moved to that part of the former USSR which subsequently became the Republic of Estonia on the break up of the USSR. His last place of residence was in Tallinn in Estonia, where he was the holder of an Estonian Alien's passport and a limited residence permit, both of which expired on 2^nd June 2000. The Respondent had obtained entry clearance to come to the United Kingdom as a visitor and he arrived here on 17^th October 1999. There was formally some issue as to whether or not he had entered illegally, but that matter was resolved in the Respondent's favour by the Adjudicator and it is, in any event, accepted that he formally applied for asylum here on 18^th October 1999.

Following submission of a completed self evidence form and a later interview, the Appellant, the Secretary of State, refused his asylum application for the reasons set out in a letter dated 26^th October 2000, and on 31^st October 2000 issued directions for his removal to Estonia as an illegal entrant following refusal of the asylum application.

The Respondent appealed against that decision on both asylum and human rights grounds. His appeal was heard on 12^th February 2001 by an Adjudicator, Mr P V Ievins, who found that the Respondent had no current well-founded fear of persecution for a Convention reason in Estonia, but then went on to consider the question of returnability to Estonia and to allow the appeal for the reasons set out at paragraphs 24 and 25 of his determination, which read as follows:

"24. But there is a separate question, his returnability to Estonia. It is agreed by both sides that the Appellant holds an Estonian Alien's passport which has now expired. The fax from the Estonian Embassy of 5^th February 2001 with the Appellant's papers, and the Respondent's CIPU assessment at paragraph 6.13 agree that Estonians with Alien passports, who remain abroad for more than 183 days, will lose their residence permits. According to the CIPU assessment, such persons would be accepted back quietly and informally into Estonia as long as they could prove they had always lived in Estonia before departure from the United Kingdom. This Appellant has lived in Estonia since childhood and it is likely he could establish that Estonia was his country of habitual residence. But according to the Estonian Embassy, that is not the official position. "Not all the temporary residence permit applications meet a positive reply. There is an immigration quota in Estonia, a number that is set by the government in the beginning of each year". A proof of family ties is said to be helpful. The Respondent says that the Appellant would be quietly and informally allowed back to Estonia if returned. The Appellant says he has no right of return and his application for a residence permit would not necessarily be successful.

25. Would the Appellant be allowed back into Estonia if he was returned there? Estonian law says he has no right to return. He would have to apply for a residence permit and his application would not necessarily be granted. The Home Office say that he would be quietly and informally let back in. I prefer the legal position to what is thought to be the informal position. The Respondent has failed to show that, on the balance of probabilities, the Appellant would be allowed back into Estonia if he were to be returned there. Although if he were to return to Estonia he would not face a serious possibility of persecution for a Convention reason, this appeal is allowed."

The Adjudicator then said that as he had allowed the appeal, under the Refugee Convention it was not necessary to consider whether return would also lead to a breach of United Kingdom's obligation's under the Human Rights Convention.

The Appellant sought leave to appeal against that decision on the following grounds:

"(i) Adjudicator found that Appellant did not have a well-founded fear of being persecuted when returned to Estonia, but he nevertheless granted him refugee status due to him being stateless.

(ii) Notwithstanding some conditions attached to the Estonian Alien's passport, there is evidence that once the Appellant can show that he has lived in Estonia all his life, he would be accepted back into the country. Appellant has both his parents living in Estonia and has been living in Estonia since he was five years old.

(iii) Adjudicator also erred in law by not following the principles laid down in Ivanov (R12583), Tikhnonov G0052 [1998] INLR 737 and Smith (02130).

Leave to appeal was granted by a Vice President, who added that the Tribunal might also wish to consider whether the claimed non-returnability of the Respondent to Estonia would be any basis, if the finding on that were upheld, for a conclusion that his return there would be contrary either to the Refugee Convention or the European Convention on Human Rights.

This appeal first came before us on 21^st June 2001, when with all respect to the Adjudicator, we indicated that it was our preliminary appeal, subject to argument, that the Adjudicator had erred in law in his approach and that the real issue was whether, as a stateless person, the Respondent's treatment if returned to Estonia would amount to persecution either by reason of his Russian racial or ethnic origin, or to a breach of his human rights. A similar issue was at that time being dealt with by another division of the Tribunal where the appeal had been heard a few days previously and promulgation of that determination was awaited. Both parties sought an adjournment in those circumstances, pending its promulgation and we agreed that this was the sensible course, during that both parties should submit written skeleton submissions to be dealt with at the adjourned hearing. For administrative reasons, this appeal was not re-listed before us until today but we have, in the meantime, had the benefit of the written skeleton submissions referred to, for which we are indebted to both parties.

It was accepted by both parties that the Adjudicator's decision was fundamentally flawed and could not stand since, absent any problems as to his status in Estonia were he to be re-admitted, it was accepted that there was otherwise no factual basis on which he would be reasonably be likely to be persecuted or to suffer treatment in breach of the absolute terms of Article 3 of the European Convention on Human Rights.

The Tribunal decision to which we have referred above was that in Sensitev v SSHD (01/TH/1351) where a similar situation had been considered. Mr Sensitev had been born in Latvia but had lived for a considerable period in Estonia before seeking asylum in the United Kingdom, and there was no evidence to suggest that he was currently a citizen of any other country. The appeal proceeded on the basis that he was a stateless person, whose country of former habitual residence was Estonia, and that the appeal could not succeed unless he could show that he faced a well-founded fear of persecution in Estonia. Mr Sensitev arrived in the United Kingdom on an Estonian Alien's passport, which expired in August 1998, just over four months after his arrival, and also had a temporary residence permit which expired at the same time as his Alien's passport. It had been found that there was no well-founded fear of persecution for a Convention reason, subject to the issues then being considered, on the basis of Mr Sensitev's personal history and the only essential difference between his position and that of the present Respondent was that the removal directions predated the coming into force of the Immigration and Asylum Act 1999 on 2^nd October 2000 so that the issue of any potential breach of his human rights did not arise in that case. The Tribunal noted that under the 1993 Estonian Alien's Act at paragraph 14, provided that a residence permit or work permit expired, irrespective of any specific date of expiry expressed in it, where an alien stayed outside Estonia for more than a total of 183 days in a year and had failed to register his absence under the conditions and pursuant to the procedures established by the Estonian government. Unsurprisingly, as in the present appeal, Mr Sensitev had failed to register his absence since, like the present Respondent, his purpose in being in the United Kingdom was to acquire refugee status.

The Tribunal then proceeded at paragraph 21 of the determination to make certain findings which, since they are equally applicable to the present appeal, we adopt and now set out:

"1) That by virtue of having remained outside Estonia for more than 183 days without having registered his absence with the Estonian Embassy in London, this Appellant's temporary residence permit has expired and cannot be extended;

2) That even if his expired Estonian Alien's passport were current, such a passport does not guarantee a right to right [we assume this is an error for a reference to a right to a residence permit] in the absence of a specific authorisation placed in the passport;

3) That in order to obtain here a new or renewed temporary residence permit, the Appellant would need to apply to the Estonian Embassy in London;

4) That despite not having needed a work permit during his previous years in Estonia he may, in order to be able to work legally, need to apply for one now in compliance with the requisite requirements;

5) There would be no question of the Appellant obtaining a permanent residence permit until he had first obtained a temporary residence permit;

6) There would be no question of the Appellant obtaining Estonian citizenship until he had first obtained permanent residence."

The Tribunal then went on to consider whether "these manifest obstacles to the Appellant re-acquiring status as a legal resident in Estonia would make any return … contrary to the Refugee Convention". The Tribunal went on to conclude that this would not be the case. They considered the following three possibilities of return, namely that he might be excluded, might be allowed in but then required to leave, or that his presence might be tolerated.

The Tribunal then went on to deal with these issues in the following terms:

"27. Turning to the first possibility, under paragraph 16 of the 1993 Act there is clearly legal authority for the entry of such a person to be prohibited. However, as Mr Wilkie has pointed out, if the Estonian authorities refused to admit the Appellant, he would be returned to the United Kingdom. We are prepared to accept that as a correct description of the United Kingdom's practice in the performance of its obligations under international law in respect of persons it seeks to return to other states. We find ourselves in further agreement with Mr Wilkie in discerning no evidence of persecution under the Refugee Convention at any stage of this process. Leaving aside repeated attempts at return, the only situation in which an element of persecution might arise would be when the act of return would expose a person to a well-founded fear of persecution in the destination country ie a violation of Article 3 of the Refugee Convention. But for reasons we shall clarify in a moment, no such situation arises in this case.

28. As to the second possibility, namely that of the Estonian authorities requiring him to leave Estonia, there is no evidence that they take such steps in respect of non-citizens who have no other nationality or country prepared to accept them. Nor is there any evidence that, in operating their deportation rules, the Estonian authorities would seek to remove anyone in breach of their own non-refoulement obligations under the Refugee Convention. Given the emphasis in the background country materials on the current government's considerable efforts to ensure compliance with European and international human rights Conventions, we think that any such possibility is purely speculative.

29. As to the third possibility, that he would be re-admitted and his stay tolerated, the Tribunal would accept that the Appellant would lack a secure legal basis of stay and would apparently be prevented from legally working at least for some period of time. However, it is equally clear that his lack of a legal basis for stay would not exclude him from civil and political rights. As set out at paragraph 5 of the 1993 Act:

"Aliens staying in Estonia are guaranteed rights and freedoms equal to those of Estonian citizens unless the Constitution, this Act, other Acts of international agreements of Estonia provide otherwise".

30. It is further provided that:

"Aliens are guaranteed the rights and freedoms arising from the generally recognised rules of international law and international custom".

31. Estonia has also ratified the European Convention on Human Rights almost all of whose rights are guaranteed to citizens and aliens alike.

32. Complementing these legal safeguards to the Appellant's situation if he was re-admitted to Estonia, we consider it highly material that, despite the very close monitoring by international and European analysts and observers of the situation of non-citizens in Estonia over the past decade, there is virtually no evidence that persons who lack a legal right to stay in Estonia face any serious denial of their civil or political or for that matter their economic, social or cultural rights. The March 2000 CIPU Bulletin records at paragraph 2.2 that "[t]he Estonian government generally respects the rights of its citizens". And at paragraph 8.32 it adds that "[t]he rights of the Russian-speaking minority, with or without Estonian nationality, continue to be largely observed and safeguarded". The same report notes that both the OSCE Mission and the OSCE High Commissioner on National Minorities have declared that they could not find a pattern of human rights violations or abuses against ethnic Russians in Estonia.

33. We think it reasonable to assume also that the Estonian authorities, in any dealings with the Appellant, would accord some weight to evidence of his considerable ties with Estonia. [The Tribunal then dealt with these on the basis of the specific circumstances of Mr Sensitev.] These include: the fact that he had lived there for almost his entire life between 1965 and his departure in 1998 (over 20 years); the fact that he had worked there; the fact that he was the son of an Olympic champion and had won medals in his own right in clay-shooting; and the fact that his mother lived in Estonia. In addition, and of particular importance, the Appellant is a person who had been considered suitable to be granted an Estonian Alien's passport and a residence permit in the past. Under the 1993 Alien's Act paragraph 8(2) it is made clear that an Alien's passport is only issued to an alien staying in Estonia with regard to whom a decision to issue a residence permit has been made.

On the basis of those matters, the Tribunal concluded that Mr Sensitev's removal, if he were admitted to Estonia and not required to leave, would not lead to any breach of the United Kingdom's international obligations under the Refugee Convention as:

"He would not face any serious discriminatory denial of his civil or political or economic, social and cultural rights such as would give rise to persecution. Going by the March 2000 CIPU Bulletin it is not even certain that the Appellant would be denied the social benefits or pension rights available to Estonian citizens."

In the present appeal, it was accepted that it was proper to approach the Respondent's situation on the basis that he was to be regarded as a stateless person in a similar position to Mr Sensitev. On the facts, the Respondent had been habitually resident in Estonia for some 24 years prior to his departure and had for some time prior to that departure been in partnership in Tallinn as a furniture manufacturer. His wife has subsequently joined him in the United Kingdom with their two children. His parents and sister remained in Estonia.

Mr Symonds accepted that removal to Estonia was within the lawful powers of removal of the Secretary of State but sought to raise, as a preliminary matter, whether the exercise of such powers could properly be described as lawful (as opposed to arbitrary) where it was known that the Respondent would not be admitted to Estonia so that the purpose of removal cannot be achieved. As we have pointed out, that is to put the matter far too high. The most that could be said on the evidence before us was that the Secretary of State might not be able to effect practical removal but Mr Jones made clear to us that if the Respondent were not admitted by the Estonian authorities, then it was the policy of the Secretary of State that the Respondent would be re-admitted to the United Kingdom so that his position could be reassessed on the basis that he was a stateless person. There would be no question of any repeated attempt to remove him to Estonia without such reconsideration. There is, in our judgement, a clear distinction between the question of lawfulness of intended removal, in respect of which there is specific provision for challenge under Section 66 of the Immigration and Asylum Act 1999, and the practicability of removal to a country to which the person in question may be lawfully removed under the powers given by Parliament to the Secretary of State. If the proposed removal is lawful, the Immigration Appellate Authorities are not concerned with the question of its current practicability. Were it otherwise, the obviously absurd situation that a failure by somebody unlawfully here to take steps open to him or her to procure the necessary travel documents readily available to them on application would prevent their lawful removal. Whilst we accept that that is not the position here by reason of Estonian citizenship and residence law, it is the position of the Secretary of State that he believes removal to be practicable, and that is an issue for him and not for us.

Mr Symonds then submits that removal would be in breach of the Respondent's human rights under either Article 3 or Article 8 of the European Convention on Human Rights.

So far as the Article 3 claim is concerned, it was his submission that the decision to refuse to grant the Respondent leave to enter or remain in the United Kingdom and to give directions for his removal prevented him from establishing and placed a real restriction upon his fundamental rights and freedoms with no prospect of that circumstance being altered. He submitted that, pending any attempt at removal, the Respondent would have no access to the usual support systems in the United Kingdom and that both here, and if re-admitted to Estonia, his dignity as an individual would be denied him in such a way as to amount to degrading treatment. In this connection, he sought to rely on the views on the European Commission of Human Rights in the East African Asians the United Kingdom Application (1981) 3 EHRR 76. He pointed out that, at paragraph 189 of the decision, the Commission had found that degrading treatment would follow from treatment "if it lowers him in rank, position, reputation or character, whether in his own eyes or in the eyes of other people" provided that it reached a sufficient level of severity to engage Article 3. At paragraph 196, the Commission further considered the question of whether discrimination based on race could "in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3". It must, however, in our view, be appreciated that what is said in the East Africans case must be looked at very much in the context of the facts of that case. The applicants were citizens of the United Kingdom who, following the independence of the areas in East Africa where they had lived for many years, were in most cases deprived of their livelihood and rendered destitute, their continued residence in East Africa had become illegal and they had been refused entry by the only state of which they were citizens, namely the United Kingdom, so that they had nowhere else to go. The situation of the Respondent is entirely different. He is not a citizen of this country and there is no evidence that aliens in Estonia who are permitted to reside there suffer such severe discrimination as applied in the East African Asians case where the deliberate policy of the relevant government was to make their continued stay in the countries of their former habitual residence intolerable. Given the Home Office policy should the applicant not be re-admitted to Estonia, we have no hesitation in saying that there is, in our view, no merit at all in Mr Symonds' submissions that removal would be in breach of Article 3 of the Convention. The Respondent would either be accepted back into this country if the Estonian authorities refuse to readmit him or, if allowed to return, would not, for the reasons so clearly expressed in Senitev be reasonably likely to be subjected to treatment contrary to Article 3 by the Estonian authorities.

The only other basis of claim advanced by Mr Symonds was that removal would amount to a breach of the Respondent's rights under Article 8 of the Convention. This is an issue which, in our view, does require to be separately considered.

The terms of Article 8 are as follows:

"(1) Everyone has the right to respect his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right, except such as in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection and the rights and freedoms of others."

It seems to us that if there is a potential breach of the Respondent's human rights under Article 8 by removal, then the issue for our decision is whether such removal would be proportionate to the public interest under Article 8(2). In those circumstances, it may be argued that the practicability of removal does have a direct impact on the issue of proportionality in the case of interference with the Respondent's human rights under Article 8(1).

The Respondent arrived in the United Kingdom in October 1999 and was followed shortly thereafter by his wife and children. It is not disputed that they live together as a family unit, in accommodation in London. The Respondent's wife sought asylum in her own right and it was not clear whether her application had been the subject of refusal, appeal and dismissal but, since the practice of the Secretary of State, as confirmed to us by Mr Jones, is that the removal directions relating to the Respondent would not be effective unless he, his wife and children could all be removed as one family unit, it is clear that implementation of the removal directions would not result in the splitting of the family unit. It was accepted by Mr Jones that the Respondent and his wife would have established a family life in this country, albeit subject to potential removal, but it was his submission to us that removal as a family unit would not lead to any breach of the Respondent's Article 8(1) rights to family life.

It was, however, Mr Symonds submission that if such removal would be ineffective because the Respondent and his family would not be admitted to Estonia, any disruption of family life by such an attempted removal would not be proportionate to the legitimate interests of the state in exercising firm immigration control under paragraph 8(2). This is in contrast to the position under the Refugee Convention and Article 3 rights where, for the reasons which we have already explained, we take the view that we are not concerned with issues of the practicability of removal in circumstances where removal will not give rise to any breach of the United Kingdom's international obligations.

Similarly, the voluntary re-admission of the Respondent and his family to Estonia would not give rise to any breach of Article 8 rights, because the family unity would not be disrupted and, for the reasons found applicable in Sensitev, resettlement in Estonia would not lead to a breach of human rights because of the country conditions which will be applicable there in the former country of habitual residence of the Respondent and his family, who would indeed then be reunited with their wider family who still live there.

It seems to us that a successful argument on proportionality could be raised, if at all, only on the basis that there was no reasonable likelihood of re-admission to the country of former habitual residence.

In this respect, Mr Jones relied on the CIPU Bulletin 1 – 2001 which recorded the provision as to revocation of a residence permit or work permit for an alien by reason of unregistered absence in the terms which we have already set out but then went on at paragraph 14(10) of the Bulletin to say that on the information available to the Secretary of State it was most unlikely that in practice that an individual's failure to register absence would result in revocation of a residence permit and that "failure to comply with Article 14 would not be an obstacle to an individual re-entering Estonia".

We had before us three letters from the Estonian Embassy in London, all of which were signed by Mr Kart Juhasoo-Lawrence, the Consul. The first two letters to the Respondent's representatives and dated 5^th February and 23^rd May 2001 respectively. The latest letter was to the Appellant's Country Information and Policy Unit and was dated 27^th July 2001.

The earliest letter summarised the position as follows:

"Those Estonian Alien's passport holders, whose passport and residence permit have expired while they have been away from Estonia, and who have not, prior leaving Estonia, applied for a new residence permit, have to obtain some kind of valid passport for themselves before they can start applying for a temporary residence permit at the Embassy. Not all the temporary residence permit applications meet a positive reply. There is an immigration quota in Estonia, a number that is set by the government in the beginning of each year, calculated on the basis of a number of population (0.05%). A proof of family ties will here be helpful."

The second letter was more specific. It said that if a person had a temporary residence permit which expired on 1^st June 2000, the last date for applying for a permanent residence permit would have been 1^st May 2000. The last date for applying for the renewal of his temporary residence would have been 1^st December 2000. After that date, the person concerned could apply for a new temporary residence permit in accordance with the Estonian Alien's Act 1993 on an equal basis as any other foreigner applying for the first time. The application could be made to any Embassy and the time for processing was one year from the day the documents had been accepted by the Board, taking into account the annual immigration quota. Unless the applicant considered applying for a temporary residence permit, he had to apply for a work permit at the same time which would require an invitation issued by an employer in Estonia to him. It concluded:

"He would, most likely, not be admitted in Estonia if he tries to enter the country without valid documents."

The third letter, addressed to the Appellant, says:

"I understand that Article 14(2) of the Estonian Alien's Act, which lists the conditions when residence permits are revoked, has left you the impression that the revocation is a somewhat automatic course of action. In fact, the revocation is a process that has to be initiated, deliberated and completed. …. Each case is considered on its own merits while the person concerned has the right to be present and participate in the discussion. In other words, there is never any automatic invalidation of a residence permit.

It should be kept in mind that revocation of a residence permit is regarded as an extreme measure which is always carried out against the background of a wider legal framework of human rights. It means in practice that only very few revocations have been carried out over the past few years and the number will stay very low. I personally think it is most unlikely that failure to comply with Article 14(2)(3) of the Alien's Act would be considered a serious enough transgression to lead to the revocation of a residence permit, least of all a permanent residence permit.

There has not been a single case of a revocation of a permanent residence permit. The Estonian Citizenship and Migration Board is not at all inclined to initiate processes, the results of which are likely to be overthrown by a court."

The letter then goes on to say that the lack of the registration stamp (that is relating to intended absence in excess of 183 days) in an individual's passport would not be an obstacle to him/her re-entering Estonia. Estonian border guard is under the obligation to permit re-entry to everyone who holds a valid passport and a valid Estonian residence permit, temporary or permanent. The holder of a permanent residence permit would not have a problem renewing their Estonian Alien's passport if that has expired.

We note also that there had, in the past, been substantial grants of permanent residence permits to many of Russian ethnicity, an Alien's passport may, under the Act, be issued to an alien who does not have a passport or equivalent document and that there is an exceptional power granted to any official authorised by the Minister of Internal Affairs who grant an entry visa to aliens whose arrival in Estonia is necessary due to hurtant and unforeseeable circumstances. It is clear, therefore, that there are wide discretions available to the Estonian authorities as to permitting entry. The 1993 Act also specifically provides that any alien lawfully admitted to Estonia shall be guaranteed the rights and freedoms equal to those of Estonian citizens or arising from the generally recognised rules of international law and international custom.

Finally, we bear in mind that it is the stated position of the Secretary of State in the CIPU Bulletins that he has reason to believe that, in practice, the re-entry of former lawful alien residents will be permitted.

Looking at the totality of the evidence produced to us, we do not think it can be said that it is not reasonably likely that the Respondent will be re-admitted with his family if now removed. Since the position is regulated by the Aliens Act of 1993 in Estonia, that would also have been the situation at the date of the Secretary of State's decision.

The Respondent has no right to remain in this country and, on the face of it, removal, provided it is with his remaining family members here, would be proportionate to the regular enforcement of immigration policy, a matter within the scope of the provisions of Article 8(2) of the Convention. As we have already noted, should it be that he and his family would not be re-admitted to Estonia, the Secretary of State accepts that they would have to be re-admitted to this country for their position to be reconsidered in the light of those circumstances.

Taking into account all those factors, we are of the view that removal pursuant to the present directions, whether ultimately effective or not, does not give rise to any breach of the Respondent's Article 8 rights.

For the above reasons, we therefore allow the appeal of the Secretary of State.

MR J BARNES

VICE PRESIDENT