Heard at Field House			[2004] UKIAT 00067 B (Mongolia)
On 16 March 2004
Prepared 17 March 2004

IMMIGRATION APPEAL TRIBUNAL

Date Determination notified:

08 April 2004  

Before:

Mr Andrew Jordan (Chairman)
Rt. Hon. The Countess of Mar
Mr A.J. Cragg

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
APPELLANT

and

RESPONDENT

Representation
For the appellant/Secretary of State:	Mr S. Halliday, 
Home Office Presenting Officer
For the respondent/claimant:		Mr R. O’Ryan, counsel

DETERMINATION AND REASONS

1.	The Secretary of State appeals against the determination of an adjudicator, Mr DJ Hubball, allowing the claimant's appeal on human rights grounds against the decision of the Secretary of State to refuse both the claimant's asylum and human rights claims.

2.	The claimant is a citizen of Mongolia and was born on 8 November 1973.  She is 30 years old.  She entered the United Kingdom avoiding immigration controls and claimed asylum on 3 November 2001.  The Secretary of State refused her claim and made a decision on 24 April 2003, giving rise to a right of appeal under section 82 (1) of the Nationality, Immigration and Asylum Act 2002.  The claimant duly appealed.

3.	The claimant was born in Mongolia of a Chinese father and a Mongolian mother.  She went to university in Mongolia but claimed, as a result of her mixed ethnicity, she was discriminated against.  She married a Mongolian whose parents strongly disapproved of her because of her mixed blood.  In particular, her father-in-law was violent and abusive.  On 15 April 2000 the family home was burnt down in suspicious circumstances and the family decided to leave Mongolia.

4.	The adjudicator found that the appellant's father-in-law was a man of some local influence but was not responsible for the destruction of the claimant's family home. He did not find that the discrimination and ill-treatment complained of by the claimant crossed the threshold of severity into persecution, even taken cumulatively; see paragraph 31 of the determination.  There is no appeal against that finding.

5.	The adjudicator found, however that the claimant and her husband left Mongolia illegally.  In a statement signed by the claimant on 3 July 2003, found beginning at page 4 in the Tribunal's bundle, the claimant said in paragraph 21:

"The Mongolia Criminal Law states that if a person leaves or enters Mongolia illegally then that person can be sentenced to imprisonment for up to five years.  I am therefore afraid that both my husband and myself will be arrested and put in prison as we used illegal travel documents to leave the country."

6.	The claimant's husband also made a statement on the same day in which he said in paragraph 18:

"We also left Mongolia illegally.  If we are returned we will be asked for a passport or travel documents.  When we are unable to produce them we will be detained.  The Mongolian Criminal Code states that the offence of illegal entry is punishable by up to five years in prison."

7.	Neither the claimant nor her husband are experts in the criminal law of Mongolia and it was therefore sensible to seek expert opinion from a United Kingdom Mongolist to establish the likely consequences on return.  In a report prepared for the benefit of the adjudicator, Mr Alan J. K. Sanders provided an opinion on 11 July 2003.  On page 7 of the report, under the heading of Illegal Crossing of Mongolian Border, he stated:

"Both the appellant and her husband point out that Mongolian criminal law contains a penalty of five years imprisonment for crossing the border illegally (paragraphs 18 and 21 respectively).  The new Mongolian Criminal Code, chapter 5, paragraphs 89.2, says that this penalty applies for repeated or premeditated actions (but is not applicable to foreigners seeking refuge)."

8.	The adjudicator dealt with this material in paragraph 33 of his determination:

"On the evidence before me I accept that the appellant and her husband left Mongolia illegally.  I further note that Mr A. J. K. Sanders, the expert witness called on behalf of the appellant, states that the Mongolian criminal code contains a penalty of five years imprisonment for crossing the border illegally.  I find that there are substantial grounds for believing that if returned to Mongolia now there is a real risk that the appellant and her husband would be imprisoned for up to five years for leaving Mongolia illegally.  I further find that the prison conditions in which the appellant and her husband would be imprisoned are life-threatening, because of insufficient food, heat and health care.  Further tuberculosis is endemic in Mongolian prisons and detention centres.  In these circumstances to return the appellant and her husband to Mongolia now, where it is reasonably likely they would be subject to a long term of imprisonment, would be to breach the protected rights of the appellant and her husband under Article 3 of the ECHR.  Such imprisonment would constitute inhuman or degrading treatment or punishment of the appellant and also her husband.  The life-threatening nature of prison conditions in Mongolia is confirmed by the US State Department Report dated 31 March 2003 on page 45 of the appellant's bundle."

9.	Accordingly, although the adjudicator dismissed the appeal on asylum grounds, he allowed the appeal under the ECHR.

10.	The Secretary of State appealed.  In the grounds of appeal there are two challenges made to the adjudicator's decision.  First, it is said that there was insufficient evidence before the adjudicator to establish the reasonable likelihood that the claimant would be convicted or, if convicted, sentenced to the maximum sentence of imprisonment.  In particular, it is said that Mr Sanders’ report failed to demonstrate that this legislation is enforced by the authorities.  The report does not provide any examples of persons subjected to penalties on return for illegal exit.  Furthermore, there are no references in the country background material that suggest failed asylum seekers are imprisoned on return as a result of the circumstances in which they departed the country. Secondly, the challenge is made to the adjudicator's finding that prison conditions in Mongolia are sufficiently poor to overcome the high threshold required to breach Article 3.

11.	To be fair to the adjudicator, the adjudicator did not state in the passage that we have set out about that the claimant was likely to be sentenced to the maximum term.  Rather he said that they were likely to be imprisoned for up to five years.  Later, however, he found that it would be a long term of imprisonment, without stating how long or his reason for so finding.

12.	For the purposes of this appeal, Mr Sanders was asked to reconsider his report and he has produced an addendum in the form of two letters dated 12 November 2003 and 1 December 2003.  These are found beginning at page 71 of the Tribunal's bundle.  At page 73, as an Appendix, Mr Sanders sets out Article 89 in full:

“Article 89 Crossing of the Mongolian border illegally

89.1.  The punishment for having crossed the Mongolia border illegally is a fine of 90 to 250 times the minimum wage or imprisonment from three to six months.

89.2   If the offence is repeated or premeditated the punishment is imprisonment for up to five years.

[A Note adds that this does not apply to foreigners seeking refuge.]"

Helpfully, he also sets out Article 22, although this is not strictly material since this Article was not mentioned before the adjudicator whose determination was confined to the risk arising from Article 89, the illegal crossing of the Mongolian border.

We only need refer to the following sub-articles:

Article 22.2.

Persons whose acts violate the following regulations for crossing the state border are called border violators:

2.	Persons who cross or are preparing to cross the state border at a designated crossing point with documents which are not valid for crossing the border.

(The Tribunal infers that border violators are subject to penalties, although we are not told what they are.)

13.	It is a matter of construction whether the statute prohibits the illegal crossing out of the country as well as the illegal crossing into the country.  Since it is normally the concern of the state to prohibit unlawful entrants it is clear that it is directed at illegal entrants.  Indeed, the express reference to the statute not applying to foreigners seeking refuge, demonstrates that some entrants (refugees) are expressly excluded from the prohibition.  It is less clear that the statute is directed against those leaving unlawfully since (save in the case of highly repressive states, such as the former Soviet Union) the state does not normally have much interest in those who wish to depart.  The words, however, are sufficient to prohibit exit but there might well have to be found an obligation (implied or explicit) that Mongolian citizens should not leave the country without permission or unless suitably documented.  These considerations are academic because the Tribunal cannot provide an authoritative interpretation of the Mongolian Criminal Code; only the national courts of Mongolia can do that.  It is for this reason that we turn to the evidence as to how the legislation is put into practice.  For these purposes we assume that the legislation is capable of creating a criminal offence of leaving the country without holding a valid Mongolian passport.

14.	Our first consideration is the risk of prosecution.  In assessing the risk on return to Mongolia, we accept that the government of the United Kingdom does not return citizens of another country to their country of origin, or elsewhere, unless they are in possession of valid travel documents, either in the form of their own national passport or in the form of emergency travel documents acceptable to the receiving state.  Indeed, this is common sense since to do otherwise would result in the returnees being turned back at the border or airport.  Consequently, we are satisfied that the claimant is not a risk of prosecution by reason only of the claimant's arrival in Mongolia without her own passport.

15.	This leaves open whether there is a reasonable likelihood that the claimant will be prosecuted for the manner in which she left Mongolia.  As Mr O'Ryan, who appeared on behalf of the claimant, correctly submitted, the fact that the claimant will not return in possession of her own national passport will raise a suspicion as to the circumstances in which she left.  Most states do not keep a record of departure for their citizens.  Consequently, the Mongolian authorities are unlikely to know when or where the claimant left Mongolia.  Furthermore, the fact that one of its citizens returns without a national passport does not establish a breach of emigration control: the returnee may have lost her passport or it may have been stolen.  Indeed, it may have been destroyed by her.  Applying normal principles of criminal law, whilst the returnee without her own passport will be under suspicion, there is unlikely to be sufficient evidence to establish a breach of the criminal law.

16.	Even if there were sufficient evidence, the Tribunal needs to the satisfied that there is sufficient evidence that a prosecution is likely to occur in the circumstances we envisage on the claimant's return.  Mr Sanders, in his letter of 1 December 2003, sets out that, while checking on political events in Mongolia in 2000, he noticed that in 1999 and 2000 Mongolian newspapers paid quite are a lot of attention to border issues, especially alcohol smuggling across the land border with China and livestock rustling across the land border with Russia.  In most cases, he said, the border troops were reported to have detained border violators, usually Chinese smugglers and Tuvan rustlers for criminal investigation.  He noticed 42 front-page reports of this kind in 1999 and 71 reports in 2000.  He gave two specific examples.  Twelve Mongols were returned from Korea on the same flight as they entered, having been refused leave to enter because it was not clear what work they would be doing in the Republic of Korea.  Three of the people who were returned to Mongolia were detained by the border troops for investigation.  Secondly, a Mongol citizen was arrested on the border crossing with China for having removed the photograph in the passport of someone else and inserting his own photograph which he then presented as genuine in an attempt to cross the border.

17.	These reports fall short of stating that any prosecutions followed.  There is, therefore, no evidence that those detained subsequently appeared in court, were convicted and sentenced.  Furthermore, cases of alcohol smuggling and cattle rustling are very different in their nature.  Similarly, producing or using forged documents may be an offence under Article 22 but is not necessarily an offence under Article 89. In our judgment, there is no evidence as to how the Mongolian authorities view those returning to their country carrying emergency travel documents. More specifically, there is no evidence of any prosecutions.

18.	The adjudicator only had before him an incomplete portion of Article 89. In the report before the adjudicator, it was a misleading omission to make reference to Article 89.2 without also referring to Article 89.1.  Article 89.1 provides that the penalty for illegally crossing the border is a fine of 90 to 250 times the minimum wage or imprisonment from three to six months.  This is a first offence for the claimant.  The offence took place 2½ years ago.  89.2 provides for imprisonment for up to five years if the offence is repeated or premeditated.  This suggests cases of a particularly serious nature or where there is, perhaps, a conspiracy.  The Tribunal is not able to understand what it meant by “premeditated” in the context of leaving the country illegally since it is difficult to envisage any circumstances in which the offence is not premeditated, unless it is where the accused was unaware that he was crossing the border.  It follows that there is no evidence that the claimant is likely to receive a prison sentence at all, even if prosecuted and convicted.  Whilst the adjudicator was misled as to the availability of the lesser powers of sentencing, there was no evidence before him that the claimant was going to receive the maximum sentence or a long sentence.  In our judgment, in the absence of any evidence as to the usual tariff for such offences, he was not entitled to assume that prison, even on remand, was inevitable with an offence of this character, far less that it would be long.  

19.	The combination of the Tribunal now having sight of the lesser offence set out in Article 89.1 and the contents of Mr Sanders letter of 1 December 2003, (to the effect that, after examination of border violations, there is no evidence that failed asylum-seekers are prosecuted on return for the manner of their departure), leads us to the inevitable conclusion that the adjudicator was in error in his finding that the claimant faced a risk of prosecution and conviction and imprisonment. Accordingly, the Secretary of State’s appeal must succeed.

20.	Having so decided, we agreed with Mr O’Ryan’s suggestion that it was unnecessary to consider the second issue raised in the grounds of appeal, namely, the prison condition in Mongolia.  We expressly avoid any finding as to whether the prison conditions in Mongolia are so poor as to engage Article 3 of the ECHR.  This issue was contested by the Secretary of State in the grounds of appeal and we express no opinion upon it.   We note that the Tribunal considered this issue in Odkuu Ahmed [2002] UKIAT 06150.     

Decision:  The Secretary of State’s appeal is allowed.

Andrew Jordan
Vice President
Date: 17 March 2004