Bayangol v Secretary of State for the Home Department

Permission to appeal in an asylum and human-rights case should be granted where there is an arguable error of law in the treatment of material facts relevant to an Article 3 claim. A tribunal must assess the risk arising from the applicant’s actual legal position, including charges, detention, bail conditions and any breach of those conditions. It must not treat the only possible risk as non-state intimidation where the findings also raise possible state-related risks. The claim remains subject to the very high threshold required by Article 3.

The appellant, a Mongolian national, claimed asylum and human-rights protection after alleging torture, imprisonment, ill-treatment and threats from the Mongolian Mafia. An adjudicator allowed his appeal on Geneva Convention and human-rights grounds. The Immigration Appeal Tribunal allowed the Secretary of State’s appeal, rejecting the imputed-political-opinion basis of the asylum claim and holding that Article 6 was not engaged.

The appellant sought permission to appeal. The central issue was whether the Tribunal had properly approached the possible Article 3 consequences of return, including the appellant’s alleged outstanding charges, bail conditions and breach of those conditions.

1. Application granted. Permission to appeal was limited to the Article 3 claim concerning what might happen to the appellant if returned to Mongolia. Permission was not granted on the alleged imputed-political-opinion ground under the Geneva Convention.
2. On the adjudicator’s findings, the appellant appeared to have been charged with offences arising from the restaurant incident, detained for two months, released on bail, required to report daily and then escaped the country. The Immigration Appeal Tribunal’s conclusion that there was no basis for finding that he was awaiting charge was therefore open to examination.
3. The first-instance decision was unsatisfactory because it did not clearly identify the risk on return if the appellant had breached his bail conditions and faced the charges described. The Tribunal also failed properly to address that possibility by treating the only potential risk as further pressure from the Mafia.
4. Article 6 was not in issue on the approach taken to that provision in this type of case. Article 3 required separate consideration. Buxton LJ emphasised that the appellant would have to meet the very high standard required before an Article 3 claim could be maintained.
5. In light of the deficient handling of the facts and the Tribunal’s approach to the law, the Article 3 issue should be reconsidered by the appropriate immigration tribunal, including both the facts and the law. A detailed assessment of publicly funded costs was permitted, subject to avoiding repeated assessment if a substantive hearing followed.

• Court of Appeal (Civil Division): granted permission to appeal on the limited Article 3 issue.
• Immigration Appeal Tribunal: allowed the Secretary of State’s appeal from the adjudicator’s decision.
• Adjudicator: allowed the appellant’s appeal against the Secretary of State’s refusal of his asylum and human-rights claims.
• Secretary of State: refused the application on asylum and human-rights grounds.