LSH
Heard at Field House

[2003] UKIAT 00042 M (Mozambique)
On 6 June 2003
Prepared: 10 June 2003

IMMIGRATION APPEAL TRIBUNAL

                                                                              Date Determination notified:

                                                                                     19/08/2003

Before:

Mr H J E Latter (Chairman)
Mrs M L Roe

Between

 SECRETARY OF STATE FOR THE HOME DEPARTMENT

APPELLANT

and

RESPONDENT 

Appearances:

For the appellant:		Mr A Sheikh, Home Office Presenting Officer
For the respondent:	Ms N Braganza of Counsel instructed by Douglas Simon, Solicitors

DETERMINATION AND REASONS

1.	This is an appeal by the Secretary of State against the determination of an Adjudicator (Mrs V Woolf) who allowed the Respondent’s appeal on human rights grounds against the decision issuing removal directions made on 29 March 2002.  In this determination the Tribunal will refer to the Respondent to this appeal as the Applicant.

2.	The Applicant is a citizen of Mozambique who first entered the United Kingdom on 30 July 1996 using her own passport with a diplomatic visa.   At that time she had a contract to work at the Mozambique High Commission for five years as a housekeeper.  Her diplomatic visa was valid for six months but was renewed every six months for the three years following her entry.  In February 1999 her employer, the High Commissioners asked her to leave her job and sent her back to Mozambique.  When she left she was still in possession of her Mozambique service passport.  She had difficulty adapting to life there and decided to return to the United Kingdom.  She says that she obtained a typed agreement which stated that she was employed to work at the Mozambique High Commission from a Mr Tembe at the Foreign Office in Maputo.

3.	The real reason for her returning to the United Kingdom was because she had applied for and been accepted on a course of study with Open University.  She had been advised by friends to use her Mozambique service passport in order to pursue that course.  She arrived back in the United Kingdom on 4 April 1999 using her service passport which had not expired at that stage.  In May 1999 she sent it back to Mr Tembe in Mozambique because she did not want him to get into trouble.   She claims that the High Commissioner and his wife then started to call her and ask her how she had returned to the United Kingdom.  She was reported to the Immigration Service by the Mozambique authorities.  She was arrested on 20 October 2001.  She was taken to Chelsea police station and then into immigration detention.  She then claimed asylum.  She claimed that she had been put in fear of her life by threats made by the High Commissioner and his wife and that she was at risk of being killed or being put in jail in Mozambique where she would be subjected to inhuman treatment.

4.	The Secretary of State refused her application for the reasons which are fully set out in his decision letter dated 5 March 2002.  He considered that her fear of returning to Mozambique was a fear of prosecution not persecution.   There was an independent judiciary in Mozambique.  He was not satisfied that she would be at risk of persecution or any breach of her human rights such as to engage the United Kingdom’s obligations.

5.	The Adjudicator heard the appeal against this decision on 30 September 2002.  At the hearing before her it was conceded to all intents and purposes that the appeal had no prospect of success on asylum grounds but the appeal was pursued on human rights grounds.  When considering the evidence the Adjudicator commented that the Applicant has shown herself capable of practising deception in order to gain entry to pursue a course of study.  This was a reference to her use of a diplomatic passport and the fraudulent claim that she was employed to work at the High Commission.  The Adjudicator rejected the evidence which the Applicant gave that she had been threatened by the High Commissioner and his wife or indeed anyone else.  The Adjudicator noted that when the Applicant had been interviewed at the police station in Chelsea she had signed an agreement to return voluntarily to Mozambique but had reconsidered her position after receiving further advice.  The Adjudicator was satisfied that the government of Mozambique had shown an interest in this Applicant and pursued their interest sufficiently to notify the United Kingdom Immigration authorities that she was here illegally.  The Adjudicator was satisfied that the Applicant would be picked up on return and prosecuted.  She was someone who had abused diplomatic concessions to gain entry into the United Kingdom.  Offences of this nature would inevitably lead to short periods of imprisonment in the United Kingdom and there was no reason to suppose that would not be the fate of the Applicant on return to Mozambique.  In these circumstances she was satisfied that there was a reasonable degree of likelihood that upon return she would be detained either before trial or as a result of punishment for her offences.  In the light of the background evidence she took the view that this would expose the Applicant to inhuman or degrading treatment.  The most appalling prison conditions were described in Section 1C of the US State Department Report.  Accordingly the appeal was allowed under Article 3.

6.	In the grounds of appeal it is argued that the Adjudicator was wrong to find that there was a real risk of prosecution and imprisonment in Mozambique.  The Adjudicator had been wrong to take the view that on the “agreed facts” there was any such risk.  Her findings were not supported by the evidence.  There was no actual evidence that the Mozambique government was adversely interested in the Applicant.  It could not be shown that there was a real risk of detention nor that the conditions would amount to inhuman or degrading treatment.

7.	At the hearing before the Tribunal Mr Sheikh adopted these grounds.  There was no evidence that the Mozambique authorities would take any proceedings against the Applicant nor was there any evidence as to the likely penalties.  Mr Sheikh referred the Tribunal to Krotov [2002] UKIAT 01325 where prison conditions in Russia which were described as extremely harsh and frequently life threatening were not regarded as raising any real risk of torture or other degrading or inhuman treatment contrary to Article 3.

8.	Ms Braganza submitted that the Adjudicator’s inferences from the facts were properly open to her.  The Secretary of State in his Reasons for Refusal Letter had referred to a fear arising from prosecution not persecution.  In paragraph 9 of that letter the Secretary of State asserted that any punishment received as a result of a conviction would not be disproportionate for a Convention reason.  The Adjudicator’s finding that there would be a real risk of prosecution on return was not perverse.  The background evidence showed that prison conditions were extremely poor.  The Adjudicator was entitled to conclude that a sentence of imprisonment for this Applicant would lead to a breach of Article 3.

9.	The first issue for the Tribunal to consider is whether there is a real risk of the Applicant being prosecuted with a consequent risk of pre-trial detention or post conviction imprisonment.  On the Applicant’s own admission she used a diplomatic passport to gain entry into the United Kingdom when she was not entitled to do so.  It is common ground that the Mozambique authorities reported the matter to the Home Office.  This is only to be expected.  The Mozambique authorities would doubtless wish to draw the host government’s attention to a misuse of diplomatic privileges.  The embellishments to this account made by the Applicant involving allegations that she had received threats including death threats from the High Commissioner were rejected by the Adjudicator.  The inference that there is a real risk of prosecution arises from the simple fact that the Applicant admits the wrongful use of the diplomatic passport and the matter has been reported to the British authorities by the Mozambique authorities who are aware of the situation.  There is no evidence of the offences with which the Applicant might be charged or the likely punishment.  There is no evidence as to whether offences of this nature are dealt with by custodial or non-custodial sentences.  Although the Tribunal could not exclude the possibility of a prosecution, there are so many imponderables that in our view it is not possible to be satisfied that there is a real risk of both prosecution and imprisonment.

10.	But even assuming that there is a real risk of imprisonment, the question remains whether there would be a breach of the United Kingdom’s obligations under Article 3 by returning the Applicant to face a prison sentence in Mozambique.  The Adjudicator has referred to the background materials in paragraph 23-27 of her determination.  She has cited from the US State Department Report of 2002.  This records that the government’s human rights record remains poor although there have been improvements in a few areas but serious problems remain.  Prison conditions are described as extremely harsh and life threatening and several prisoners have died due to the harsh conditions.  This is dealt with further in Section1B.  it is reported that most prisoners received only one meal per day consisting of beans and flour and that it has been customary for families to bring food to prisoners.  There are sporadic reports that guards demanded bribes in return for allowing the delivery of food to prisoners.  The prison facilities do remain severely overcrowded.  There is a national association for the support and protection of prisoners.  It is recorded there continue to be many deaths in prison, the vast majority due to illness and disease.  There are two directorates of prisons.  It is recorded that detainees who have not yet been charged were held with prisoners held for serious offences in prisons under the control of the Ministry of the Interior.  In the Ministry of Justice facilities detainees charged but not yet tried are held with prisoners who have been tried and sentenced to prison for relatively minor offences where moderate security imprisonment was deemed sufficient.

11.	Women are held in separate areas of prisons from men and at times prisons house young children usually infants brought there by mothers sentenced for long periods.  International as well as human rights groups may have access to prisoners at the discretion of the Ministry of Justice and Ministry of the Interior.  The League of Human Rights Organisation has stated that while prison accessing and conditions have improved, the overall level of treatment was poor. 

12.	The Tribunal were referred to the case of Krotov.  In paragraph 9 the Tribunal were not satisfied that the risk of imprisonment in the Russian Federation gave rise to a real risk of treatment contrary to Article 3 in circumstances where according to the US State Department Report prison conditions were described as extremely harsh and frequently life threatening.   The Tribunal took the view that there was no indication of deliberate torture or ill-treatment being prevalent and the defects in the system appeared to be the result of institutional incompetence and lack of resources.  It commented that there was no doubt a point when even unintended bad conditions reached the level of “inhuman or degrading treatment”.  The standard was a general one and if they were to be so regarded for a conscientious objector (the situation of the Applicant in that appeal) then the same judgment must apply in the case for example of a convicted murder: no doubt the Appellate Authorities would not shrink for the consequences of that decision but it was an indication of the serious nature of the considerations involved.

13.	Can it be said that the prison conditions in Mozambique are so bad that no one facing any period of imprisonment can be returned from the United Kingdom?  There are no particular features about the Applicant which put her at risk of more severe treatment then any other prisoner in Mozambique.  The only suggestion made by Ms Braganza was that the Applicant was a woman and conditions for that reason would be more harsh but according to the US State Department Report, which the Tribunal accept, women are held in separate areas from men.

14.	In Fazilat when considering the issue of prison conditions in Iran, the Tribunal commented as follows:

“We do not doubt that prison conditions in Iran are far from ideal.  We do doubt that they may not measure up to what is expected in this country or perhaps in any country which is a signatory to the European Convention on Human Rights.  As the Court at Strasbourg has recognised, it is not for signatories of the Convention to impose the standards of the Convention on all the world.  Recognition has to be had to the situation in individual countries and to the standards that are accepted and expected in those countries.  Of course in relation to Article 3 there is a line below which the treatment cannot sink, if we may put it that way”.

	Human rights deal with the dignity of each individual human being whether they are citizens of Iran, Mozambique or the United Kingdom.  Nonetheless the European Court has emphasised that the threshold for a breach of Article 3 is a high threshold.   If the inhuman or degrading treatment arises from the general situation or conditions applying to all those living in or coming under the jurisdiction of the government of the country in question the evidence must be very compelling before a Tribunal could properly be satisfied that the high threshold has been met for a breach of Article 3 subject of course to the need to consider the particular circumstances of the Applicant involved.

15.	The Tribunal are not satisfied that all people imprisoned in Mozambique are the victims of inhuman or degrading treatment.  The problems in the Mozambique prison system have been set out in the documentary evidence.  Set against the fact that the prisons are overcrowded and the conditions are described as life-threatening is the fact that families do bring food to prisoners even though there are some reports that guards have demanded bribes to permit this.  There are local human rights organisations which taken an interest in the welfare of prisoners.  It is clear that there are different types of prison depending upon the seriousness of the offence.  Women are held in separate areas of the prison and infants are allowed to stay with mothers when no other care-givers are available.  International as well as domestic human rights groups have access to the prisoners.  Looking at the situation overall, in our view it cannot be said that these conditions by themselves amount to degrading or inhuman treatment with the result that the United Kingdom would be in breach of its obligations by returning the Applicant to Mozambique on the basis that she would be at a real risk of a sentence of imprisonment.	 

16.	For these reasons in our judgment the Adjudicator was wrong in her assessment of the Article 3 claim.

17.	It follows that the Secretary of State’s appeal is allowed.

									H J E Latter
									Vice President