Batayav v Secretary of State for the Home Department

Where an European Convention for the Protection of Human Rights and Fundamental Freedoms Article 3 removal claim rests on the conditions generally faced by a class, rather than on personal targeting, country evidence may establish the requisite real risk. A consistent pattern of gross and systematic violations may demonstrate that risk, but descriptions such as “frequent”, “routine”, “general” or “systematic” must not replace the real-risk test or elevate it to probability.

Detention conditions must be assessed cumulatively. A lack of intent to humiliate does not prevent a finding of degrading treatment. A Strasbourg finding, based on admissions that materially equivalent conditions affected most detainees, may establish a prima facie Article 3 risk for a returning prisoner. The decision-maker must then assess reliable evidence of any subsequent improvement.

Zorig Batayav, a Russian citizen of Tuvan ethnic origin, claimed asylum and protection under European Convention for the Protection of Human Rights and Fundamental Freedoms Article 3. The Secretary of State refused both claims. An Adjudicator dismissed his appeal, and the Immigration Appeal Tribunal dismissed a further appeal.

Limited permission was granted only on Article 3. The remaining issue was whether his return, as an escaped convict likely to be imprisoned in Russia, would expose him to a real risk of degrading treatment because of prison conditions generally. The Tribunal had relied on an earlier tribunal decision without considering Kalashnikov v Russia (2002) 36 EHRR 587. Before the Court of Appeal, the Secretary of State sought to adduce substantial later country material concerning alleged improvements in Russian prisons.

1. Appeal allowed and remitted. Munby J, with whom Sedley and Mummery LJJ agreed, held that the appeal should be allowed to the extent of remitting the Article 3 claim to a freshly constituted Immigration Appeal Tribunal. The Tribunal had to rehear the case on the new and any further relevant evidence.

2. Article 3 prohibits removal where there are substantial grounds for believing that the person faces a real risk of sufficiently serious ill-treatment. Where the asserted risk arises from conditions generally faced by a class, the claimant may rely on general evidence. A consistent pattern of gross and systematic violations may demonstrate the real risk.

3. The Court held that Kalashnikov v Russia (2002) 36 EHRR 587 had a wider significance than a finding about one detainee. The Russian Government had accepted that conditions found to amount to degrading treatment applied to most detainees. That evidence established, at least prima facie, that a person imprisoned in Russia during the relevant period faced a real risk of Article 3 treatment. The claimant was not required to prove in advance that he would be ill-treated in a particular prison.

4. The only possible answer was evidence that conditions had improved sufficiently since the period considered in Kalashnikov. The Court could not determine that factual issue itself, particularly because the respondent’s late material required examination and the appellant needed a fair opportunity to respond.

5. Sedley LJ added that the language of “general”, “systematic”, “consistent”, “routine” or “frequent” ill-treatment must elucidate, rather than replace, the real-risk test. A real risk is distinctly less than a probability. The Tribunal was to determine whether the current evidence showed substantial grounds for believing that imprisonment in Russia would violate Article 3.

• Court of Appeal (Civil Division): allowed the Article 3 appeal and remitted it for rehearing: [2003] EWCA Civ 1489.

• Immigration Appeal Tribunal: dismissed the appellant’s further appeal on 7 February 2003. It later refused permission to appeal to the Court of Appeal on 24 February 2003.

• Adjudicator: dismissed the appeal against the Secretary of State’s refusal on 21 June 2002.

• Secretary of State: refused the asylum and Article 3 claims on 15 October 2001.