Upper Tribunal (Immigration and asylum chamber), 2014-11-06, AA/01068/2014
| Jurisdiction | UK Non-devolved |
| Date | 06 November 2014 |
| Published date | 24 February 2015 |
| Hearing Date | 02 October 2014 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/01068/2014 |
Appeal Number: AA/01068/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01068/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 2 October 2014 |
On 6 November 2014 |
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Before
THE HON LORD BOYD
Sitting As a Judge of the Upper Tribunal
UPPER TRIBUNAL JUDGE MOULDEN
Between
MR MATIUL ISLAM
(No Anonymity Direction Made)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Hossain of counsel instructed by Hossain Law Associates
For the Respondent: Mr I Jarvis a Senior Home Office Presenting Officer
DETERMINATION AND REASONS
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The appellant is a citizen of Bangladesh who was born on 10 February 1964. He was given permission to appeal the determination of First-Tier Tribunal Judge N P Dickson (“the FTTJ”) who dismissed his appeal against the respondent’s decision of 12 February 2014 to refuse to grant him asylum and to issue removal directions.
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The appellant appealed and his appeal was heard by the FTTJ on 7 March 2014. Both parties were represented at the hearing and the appellant gave evidence. The FTTJ dismissed the appeal on asylum, humanitarian protection and human rights grounds. The appellant applied for and was granted permission to appeal to the Upper Tribunal arguing that the FTTJ had erred in law.
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His appeal came before Upper Tribunal Judge Dawson (“Judge Dawson”) on 6 May 2014. Judge Dawson found that the FTTJ had erred in law and set aside the decision directing that it should be remade in the Upper Tribunal. The findings made by the FTTJ in paragraph 44 and 46 of his determination were preserved. It was thought that the appeal might serve as an appropriate vehicle for updating the country guidance case of H (Fair trial) Bangladesh CG [2002] UKIAT 05414. Judge Dawson’s Decision and Reasons records that the main issues were whether prison conditions would infringe his Article 3 human rights, whether he would receive a fair trial and whether he would be at risk of the death penalty.
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In his Memorandum and Directions following a case management hearing on 24 July 2014 Judge Dawson recorded that neither party was willing for the case to proceed as a country guidance case. In the circumstances he gave directions, not all of which have been observed, leading to the hearing before us. As well as the material before the FTTJ we have a skeleton argument and a bundle of documentary evidence from the appellant. Although the directions provided for a further witness statement from the appellant no statement has been submitted. Mr Hossain informed us that the only new evidence in the appellant’s bundle was updated medical data from the appellant’s GP. We have an updated skeleton argument and an authorities bundle from the respondent. Mr Jarvis said that the skeleton argument superseded earlier ones. The appellant attended the hearing with a Tribunal interpreter to assist him but no oral evidence was required or given.
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On 24 July 2013 the appellant made an application for a UK visit Visa which was granted for the period from 6 August 2013 to 6 February 2014. The appellant arrived in the UK on 22 August 2013 travelling on his own valid Bangladeshi passport. He said that he had come here to see his mother who was having an eye operation.
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On 15 November 2013 the appellant applied for an appointment in order to make a claim for asylum. He did not attend the appointment on 30 December 2013 but did attend the subsequent appointment on 20 January 2014 at which stage he claimed asylum. This was followed by the respondent’s decision of 12 February 2014. There is a lengthy reasons for refusal letter from the respondent dated the same date.
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The findings of fact made by the FTTJ in paragraphs 44 and 46 of the determination were;
“44. I found the appellant’s account of the court proceedings and the bail applications to be convincing. He has in my view satisfactorily answered these parts of the concerns of the respondent that were set out in the refusal letter. I am satisfied that the appellant was involved in the meeting of the Awami League when Mr Moziful Islam was killed. He has been accused of various crimes and the Supreme Court has even become involved relating to his bail application.”
“46. The appellant has also claimed that he was tortured while he was in custody. However this matter has not come to the attention of the Home Office or the Tribunal until the hearing on 21st February 2014 when he produced his initial report. There was no mention of any torture either in the asylum interview or in the letter from Universal Solicitors dated 24 January 2014. In evidence the appellant said that he had experienced eye trouble as a result of this ill-treatment but in fact he also said at his screening interview that he had suffered from eye trouble for a number of years. This was confirmed by the letter from Universal Solicitors of 24 January 2014 and the Screening Interview (3.1). I accept that the appellant was in custody from December 2012 to March 2013 but I am not satisfied that he suffered ill-treatment from the authorities during this period.”
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Mr Jarvis relied on his skeleton argument and corrected a minor error in paragraph 2a where the date when Mr Islam was killed should have been 21 June 2012 not 3 July 2012. He submitted that the issues in the appeal were the question of the death penalty in Bangladesh, whether the appellant would receive a fair trial, pre-trial detention and prison conditions. He took us through his skeleton argument.
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Mr Hossain relied on his skeleton argument. He submitted that Bangladesh was no longer on the “White List” because of the human rights situation in the country. The appellant was the number one suspect in relation to the murder of Mr Islam and had the highest profile of all the accused. He had health problems, particularly with his eyes. Even if he was not sentenced to death he would face life imprisonment which would be particularly harsh. A very high proportion of those in prison in Bangladesh were in lengthy pre-trial detention. In reply to our question, he was not able to say whether if an individual was convicted and sentenced to a period of imprisonment in Bangladesh the period spent in pre-trial detention would be deducted from the sentence. Whilst the appellant had been granted bail on two occasions he submitted that this was whilst the investigations were continuing.
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Mr Hossain asked us to put considerable weight on the evidence of the lawyer from Bangladesh whose opinion was that the appellant was highly unlikely to be granted further bail. He would be regarded as having absconded once and therefore at high risk of absconding again He had been expelled from his party, the Awami League. In all the circumstances of his case he would definitely be found guilty. Prison conditions in Bangladesh were dire and many sick prisoners died for lack of medical treatment. There were approximately 1500 prisoners on death row. We were asked to allow the appeal.
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We reserved our determination.
Prison conditions
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In SH (prison conditions) CG Bangladesh [2008] UKAIT 000761 the AIT took the view that prison conditions in Bangladesh, at least for ordinary prisoners, did not violate Article 3 ECHR. However, this conclusion did not mean that an individual who faced prison on return to Bangladesh could never succeed in showing a violation of Article 3 in the particular circumstances of his case. The individual facts of each case should be considered to determine whether detention would cause a particular individual in his particular circumstances to suffer treatment contrary to Article 3. Relevant factors would include whether there was a political element to the person being detained, whether it was detention awaiting trial or detention in service of a sentence, the likely length of detention, the likely type of detention facility, and the individual's age and state of health. The appellant claimed that he had been tortured whilst in prison in Bangladesh but the FTTJ rejected this claim and that finding has been preserved.
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The appellant relies on the Home Office Operational Guidance Note dated September 2003 which includes the following passages;
“3.13.3. Consideration. Prison system conditions remained harsh and, at times, life-threatening due to overcrowding, inadequate facilities and lack of proper sanitation. Human rights observers stated that these conditions contributed to custody or death. According to Odhikar, 58 persons died in prison in 2012 compared with 105 prison deaths in 211. In a 4 July 2012 report on the trials of Bangladesh Rifles mutineers, HRW documented 47 cases of custody death between 2009 and 2012, some due to torture or mistreatment.
3.13.4. The US State Department...
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