Batayav v Secretary of State for the Home Department

In an Article 3 removal case based on general prison conditions, substantial grounds for believing in a real risk of treatment contrary to Article 3 require significant evidence that the relevant conditions are universal or very likely to be encountered by anyone entering the system. A continuing problem or deficiency is insufficient without evidence of the required level of risk. The assessment is prospective: actual suffering by a prisoner in another case does not itself establish a risk for a returnee. On appeal, the court reviews errors of law, not the weight given to extensive country evidence. A country-guidance tribunal must give reasons with particular rigour, but need not address every adverse item individually.

The appellant, a Russian national of Tuvan ethnic origin, claimed that returning him to Russia to serve a prison sentence would breach Article 3 because of prison conditions and the risk of disease. His Refugee Convention claim was no longer pursued. In an earlier appeal, the Court of Appeal remitted the matter to the Immigration Appeal Tribunal for a rehearing on whether conditions had improved since Kalashnikov v Russia. On rehearing, the Tribunal found that overcrowding had substantially improved and that the evidence did not establish a real risk of disease for the appellant. The appellant alleged errors of law, inadequate reasoning in a country-guidance case and sought to rely on late evidence.

The appeal was dismissed. The Court of Appeal held that the Immigration Appeal Tribunal had undertaken the inquiry remitted to it and had committed no error of law.

1. Where an Article 3 claim relies on general prison conditions rather than circumstances specific to the claimant, the evidence must show a sufficiently significant risk arising from conditions that are universal or very likely to be encountered by anyone entering the system. The issue was not whether difficulties remained, but whether improvement had taken the conditions outside the level that had necessarily engaged Article 3 in Kalashnikov v Russia [2002] 36 EHRR 587. The reasoning in Hariri v Secretary of State [2003] EWCA Civ 807 supported that approach.
2. The Tribunal was entitled to find that severe overcrowding was no longer a general feature of Russian prisons. It was also entitled to conclude that health problems, although serious and requiring continuing improvement, did not establish that every prisoner would suffer harm or that this appellant faced a real risk of contracting disease.
3. The Court of Appeal was concerned with error of law, not with reweighing the objective evidence. The complaint that the findings were unsustainable on the evidence was therefore misconceived. In a country-guidance case, the duty to give reasons applies with particular rigour because the determination may operate as a factual precedent. The decision should be effectively comprehensive, but the Tribunal need not address every item of evidence individually. The present determination met that standard. The approach in S & others v Secretary of State for the Home Department [2002] INLR 416 did not require the Tribunal to explain every adverse statement in the evidence.
4. The Tribunal's own review of the evidence, rather than counsel's concession concerning overcrowding, supplied the basis for its conclusion. The late expert material was not relevant to whether the Tribunal had lawfully assessed the evidence before it. In any event, even if formally admitted, it would have failed under orthodox Ladd v Marshall principles because material was available below and would not have altered the result.

Appeal dismissed. Assessment of the appellant's publicly funded costs.

• Court of Appeal (Civil Division): In the earlier appeal, [2003] EWCA Civ 1489, the matter was remitted to the Immigration Appeal Tribunal to determine whether conditions in Russian prisons had improved since Kalashnikov v Russia.
• Immigration Appeal Tribunal: On rehearing on 13 July 2004, the Tribunal found substantial improvements in general prison conditions and no real risk that the appellant would suffer Article 3 treatment.
• Court of Appeal (Civil Division): The appeal against the Tribunal's determination was dismissed for want of any error of law.