Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION & ASYLUM CHAMBER
Case No: UI-2024-004878

First-tier Tribunal No: PA/67139/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of April 2025

Before

UPPER TRIBUNAL JUDGE BLUNDELL
and
DEPUTY UPPER TRIBUNAL JUDGE PAUL LEWIS

Between

SA
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Peden, instructed by Parker Rhodes Hickmotts
For the Respondent: Mr Wain, Senior Presenting Officer

Heard at Field House on 19 March 2025

DECISION AND REASONS

1. Upper Tribunal Judge Stephen Smith made an anonymity order in this case on 6 November 2024. There has been no application to vary or revoke that order and it remains in force.

Background

2. The Upper Tribunal issued its first decision in this appeal on 17 January 2025. The Upper Tribunal (UTJ Blundell sitting alone) found that the First-tier Tribunal had erred in law. Its decision was accordingly set aside in part and directions were given for the decision on the appeal to be remade in the Upper Tribunal. A copy of the decision of 17 January 2025 (“the error of law decision”) is appended to this decision.

3. The appellant is a national of Kazakhstan who was born on 2 January 1994 and is of Chechen ethnicity. He entered the United Kingdom on 30 August 2021, holding entry clearance as a visitor.

4. The appellant claimed asylum on 15 September 2021. He submitted a Preliminary Information Questionnaire (“PIQ”) on 7 November 2021. He provided a statement in support of his claim on 5 August 2022. He underwent a full asylum interview on 21 August 2023. His solicitors provided a number of clarifications to the interview answers thereafter. The essential elements of the protection claim which emerged are as follows.

5. The appellant was born and raised in Issyk which is near Almaty, Kazakhstan’s second city. He made a living by selling various items and he had offices in Almaty from which he carried out his business. He had experienced discrimination on account of his Chechen ethnicity. He had suffered racially aggravated assaults from ethnic Kazaks in 2012 and 2017 but it was a series of events which began in June 2021 which had caused him to leave the country.

6. On 27 June 2021, the appellant was in a local bar when a man had asked him in Kazakh whether he had any cigarettes. The appellant had replied in Russian, stating that he had. An argument ensued about the appellant’s choice of language, during which the other man made adverse remarks about the appellant’s ethnicity and the Chechen people more generally. The man then took the appellant’s wallet and walked outside, after which a fight ensued. The appellant threatened to call the police, whereupon the man produced his own police identity document and revealed that he was a police investigator named [BB].

7. BB kept the appellant’s wallet and told him to come to the police station the next day if he wanted it back. He took the appellant’s number, and called him the following day to instruct him to go to the Medue police station. The appellant duly attended the police station, and was beaten by two young police officers on BB’s instructions. When the beatings stopped, BB reminded the appellant that he had his wallet and that he knew all that he needed to know about him.

8. BB told the appellant that he could falsify a case against him but that he would not do so if the appellant paid him a bribe of 500,000 Tenge. The appellant refused but was beaten and threatened again, after which he agreed to pay the bribe and sign two blank sheets of paper. The following day, the appellant paid the money to a different man, who had arranged to collect it from his offices. A month later, the appellant received a call from BB, who demanded a further 500,000 Tenge. He made further threats about a false prosecution. The appellant realised that he would be unable to rid himself of BB’s attention. He gathered the money, which was collected by another man on 25 July 2021. The appellant began to make preparations to leave Kazakhstan.

9. BB made contact with the appellant again on 4 August 2021. They arranged to meet. BB demanded that the appellant should take out a bank loan of 15 million Tenge and give the money to him. BB said that he knew someone in the bank who could help to arrange the loan. He said that the appellant would not need to repay the money, and that if he arranged the loan then he would be rid of BB for good. The appellant did not argue, and they agreed to speak again at the end of August. By that stage, the appellant had made arrangements to leave the country. They spoke on 29 August, when BB asked the appellant to provide his ID document and an electronic signature. The appellant agreed to do so but he left the country using his own passport later that day.

10. On 31 August and 3 September 2021, associates of BB went to the appellant’s offices and spoke to his neighbours, asking where he was. They said that the appellant would be in ‘big trouble’ if he failed to get in touch with BB. Those visits were documented in a short letter from the appellant’s office neighbour [NYD] dated 15 June 2022.

11. The appellant stated, therefore, that he was in fear of BB and his associates and that he felt unable to seek assistance from the authorities or relocate within Kazakhstan in light of BB’s position.

12. The Secretary of State refused the application for asylum on 30 November 2023. She accepted that the Refugee Convention potentially applied on grounds of race but she did not accept any material aspect of the narrative set out above. In the alternative, she concluded that the appellant could seek protection from the Kazakh police or that he could relocate safely and reasonably to Aktau, Karaganda or Taraz. The respondent did not consider there to be any non-protection reasons to grant leave to remain.

13. The appellant’s appeal was dismissed by the First-tier Tribunal after a hearing in Birmingham on 8 August 2024. The judge found the appellant’s account to be credible but she dismissed the appeal because she concluded that the appellant could safely and reasonably relocate so as to avoid the risk from BB and his associates.

14. The Upper Tribunal found that the First-tier Tribunal had erred in failing to have regard to evidence which might have suggested that BB was a person with power and influence who might, according to the expert report of Associate Professor Kupatadze, be able to use his influence in order to find the appellant in a place of relocation. The FtT’s decision was therefore set aside, although the judge’s positive findings in relation to the appellant’s past account were preserved because they were untainted by the judge’s legal error.

Documentary and Oral Evidence

15. We have a consolidated bundle of 481 pages from the appellant’s solicitors.

16. We heard oral evidence from the appellant through a Russian interpreter. They confirmed at the outset that they were able to converse freely and there were no problems with interpretation thereafter. The appellant adopted the statements he had made on 5 August 2022 and 14 February 2024 and was then cross examined by Mr Wain.

17. The appellant confirmed in answer to Mr Wain’s questions that his family remained in the Almaty area and had not encountered any difficulties since he left. He remained in contact with them. He had never said that BB and his associates had targeted his family. The bar in which he had been approached by BB was outside the town. His mother lived in a rural area out of the town, whereas he had moved into the town to be nearer to his work. Mr Wain suggested to the appellant that BB was not powerful and would not be able to locate him if he relocated within Kazakhstan. The appellant stated that BB was ‘powerful enough’ and that he had access to the database. BB knew that he was not in the country because he had sent people to his office to find him after he had left. He could not prove that BB would have access to a database but he believed that all police officers did.

18. Ms Peden did not re-examine the appellant.

Submissions

19. Mr Wain relied on the refusal letter and the respondent’s review, subject to the preserved conclusions reached by the First-tier Tribunal. It was therefore accepted that the appellant had been targeted by BB and had made two payments to him before leaving the country whilst a bank loan was being arranged in his name. It was also accepted that the appellant had been physically ill-treated by BB and his associates. The real questions were whether there would be effective state protection and whether the appellant could relocate internally.

20. In answering those questions, Mr Wain asked us to consider that there was little if any reason to think that there was a continuing interest in the appellant. There was evidently no formal legal case against him. The expert report suggested that there would be a risk to the appellant if BB was an officer with power and influence but that was not so. There was no evidence concerning BB’s standing, whether from the expert or otherwise.

21. It was apparent from the report cited in the respondent’s Review that progress was being made in Kazakhstan to address the serious problems with corruption. There was no reason to think that BB was an officer of sufficient standing to deny the appellant proper redress through the police and judiciary. Applying the approach in Svazas v SSHD [2002] EWCA Civ 74; [2002] 1 WLR 1891, there would be a sufficiency of protection.

22. In any event, the appellant could relocate to the places identified in the refusal letter. It would not be unduly harsh for him to do so, and the evidence did not suggest that the appellant would be located by BB in another part of the country.

23. We invited Mr Wain to take instructions on the place to which the appellant would be returned. We are grateful to him for clarifying that the appellant would be returned to Almaty, Aktau or Karaganda, each of which has an international airport.

24. Ms Peden relied on the helpful skeleton arguments she had settled for the hearings in the Upper Tribunal and below. There were preserved findings and the Upper Tribunal was only required to consider relatively narrow issues. The proper approach was to be found in Svazas, as mentioned in the error of law decision, and [15]-[16] of Sedley LJ’s judgment were particularly relevant.

25. There was considerable country evidence which spoke to the prevalence of corruption, brutality and impunity within the Kazakh police force. The Key Passages Index illustrated the routine reality of life for the population in their interactions with law enforcement. The US Department of State Human Rights report 2022 had been relied on by the respondent but this reflected the same concerns. The U4 Helpdesk report to which Mr Wain had referred was rather more upbeat but the other material was to be preferred. The legislative changes on which the respondent seized were important but the country remained the 108th most corrupt country out of 180.

26. Mr Kupatadze’s report was prepared in 2024 and was deserving of weight despite potential difficulties with the extent to which the source material cited by him supported the opinions expressed. The report chimed with the other material when it spoke of officers abusing their power and committing ill-treatment and torture. There was also reference to false charges in the report, which chimed with the appellant’s account of the threats made by BB. Ms Peden accepted that there was a clear distinction to be drawn between officers with power and influence and those without. Taking account of the facts as a whole, it was clear that BB fell into the former category and that he would present a risk to the appellant throughout the country.

27. We asked Ms Peden when she said that the risk to the appellant would arise, given that he had been able to leave the country on his own passport. She initially suggested that risk would arise as soon as the appellant arrived in Kazakhstan but she suggested in the alternative that it would arise once BB had traced the appellant. Ms Peden made it clear that she was not seeking to pursue an argument that the appellant would be at risk as a Chechen per se, but she did submit that his ethnicity was relevant to his ability to obtain protection or to relocate internally. The appellant was from Almaty and although Kazakhstan was a large country, it was reasonably likely that the appellant would be traced by BB. The lower standard meant that a cautionary approach should be taken to such questions. Applying that approach, there would be no sufficiency of protection in Kazakhstan and internal relocation would be unsafe.

28. We reserved our decision at the end of the submissions. We take this opportunity to repeat the observation we made at the end of the hearing: we are grateful to both advocates for the quality, focus and economy in their submissions.

Analysis

29. The appellant claimed asylum before 28 June 2022 and his case is therefore to be assessed without reference to the statutory changes wrought by s31-36 of the Nationality and Borders Act 2022. It is therefore for the appellant to satisfy us that there is a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country.

30. There is no issue in this case that there is a Convention reason. The respondent accepted in the letter of refusal that the appellant’s case engaged the Convention on grounds of race. We consider that concession (from which Mr Wain did not seek to resile) to have been made correctly. It is clear from the account which we have set out above that a material part of BB’s motivation in treating the appellant as he did was the appellant’s Chechen ethnicity. It is in any event a part of the appellant’s case that he would not receive adequate state protection partly on account of the fact that he is of Chechen. For either of those reasons, we consider that the respondent was correct to accept that this is a case in which the Convention is potentially engaged.

31. The appellant’s core narrative was accepted by the First-tier Tribunal. As will be apparent from the above summary of his oral evidence, we heard only a few minutes of oral evidence from him. What we did hear, however, only served to reinforce the view formed by the judge below. The appellant is an intelligent man who received higher education before starting his own business. He clearly understands the nature of the case advanced by the respondent. He had every opportunity of attempting to improve his case by claiming in response to Mr Wain’s questions that his family had been targeted by BB after his departure, but he did not. In common with the judge below, we formed the view that he was a forthright and truthful witness.

32. That finding carries with it an obligation to recall the principle established in Demirkaya v SSHD [1999] EWCA Civ 1654; [1999] Imm AR 498 and brought into the Immigration Rules by paragraph 339K:

The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.

33. The appellant has been subject to serious harm when he was beaten and choked by police officers at BB’s instigation, and he has been subjected to threats of further serious harm of various descriptions. We take that as a serious indication of the real risk of future harm and we consider whether there are good reasons to consider that such harm will not be repeated.

34. In undertaking that assessment, we have taken account of the background material to which we were directed by both advocates. We have paid particular but not exclusive attention to the expert report of Mr Kupatadze and the Transparency International Report to which Mr Wain referred - Kazakhstan: Overview of corruption and anti-corruption, dated 5 February 2024. Having taken careful account of that material, and the helpful summary provided by the appellant’s solicitors in the Key Passages Index, we accept Mr Peden’s submission that corruption, brutality and impunity are well established in the Kazakhstan police force, and that the progress documented in the TI report is encouraging but nascent. The use of the present tense in the first sentence of the executive summary of that report clearly resonates with the opinions expressed in the background material on which the appellant relies:

Kazakhstan faces high levels of grand corruption, nepotism and administrative corruption, which present particular challenges in public financial management and public procurement.

35. With the background material in mind, therefore, we turn to consider whether there is a sufficiency of protection for the appellant in his home area of Issyk, which is very near to Almaty, which was the capital of Kazakhstan until 1997. In doing so, we have considered what was said by Sedley LJ (with whom Simon Brown LJ and Sir Murray Stuart Smith agreed) in Svazas. At [15], Sedley LJ said this:

Persecution which may make an individual a refugee typically takes two forms. One is persecution by individuals, not themselves agents of the state, whom the state cannot or will not control. The effect of persecution by such people, and the standard of adequate state protection from them, has been considered in detail by the House of Lords in Horvath v. Home Secretary [2000] 1 AC 489. The other form is persecution by agents of the state itself. Here the persecutors are clad in the authority of the very state which is supposed to afford its citizens protection. But within this category there is an important distinction between abuse which is authorised or tolerated by the state and rogue officials who from time to time abuse their authority. And in the space between these two poles lie cases like the present, where the evidence accepted by the fact-finding tribunals depicts a police force which systematically or endemically abuses its power despite the law and the will of the government to stop it.

36. We accept Ms Peden’s submission that this is a case which falls squarely within the final sentence of that paragraph. BB is a rogue state agent who abused his position of power for personal gain and the background evidence shows that the police force systematically acts in that way despite the law and the attempts by the government (particularly since 2019) to stop it. We think it unlikely that the authorities in Almaty would take any steps to protect the appellant from BB. The references to officials abusing their power with impunity suggest clearly that there would be no sufficiency of protection for the appellant. We reject Mr Wain’s submission that state protection provides a good reason to conclude that there would be no repetition of the serious harm to which the appellant has been subjected in that past.

37. That leaves internal relocation to the locations identified by the Secretary of State in the letter of refusal: Aktau, Karaganda or Taraz. In considering that submission, we have taken account of Mr Wain’s submissions about the nature and extent of the threat faced by the appellant. The threat from BB arose because he saw an opportunity to defraud the appellant. He defrauded him twice before seeking to extract a much more significant sum from him. He sent associates to the appellant’s business on two occasions but there is no suggestion that he has done so again, and it is not suggested that the appellant’s family has been targeted, or that any false charges or other formal action has been taken against the appellant. BB was evidently able to act as he did at the police station because a blind eye was turned to his actions, but there is no reason to think that matters have escalated. We note in that connection that BB did not seek to prevent the appellant leaving the country using his own passport, although we bear in mind that the appellant left whilst the bank loan was still being arranged.

38. Mr Kupatadze opined in his report that a rogue state agent such as BB might be able to present a risk across Kazakhstan but that the extent of that risk would depend on the power and influence of the individual. It was found in the error of law decision that the judge below had failed to come to grips with that point, and had overlooked matters which potentially indicated that BB was an officer with power and influence:

(i) Some of BB’s actions took place at a police station;
(ii) Two other officers were involved;
(iii) BB had a connection with the bank; and
(iv) Other people had been sent by BB to the appellant’s place of work.

39. Ms Peden recognised in her submissions that there was a critical distinction drawn in the expert report between those officers who had power and influence and those who did not. She asked as to consider the factors above and she also highlighted the following points in submitting that BB fell into the former category:

(v) BB had already abused his official position; and
(vi) He had threatened the appellant with false charges.

40. We have taken account of those matters, and of the helpful list which appears at [17] of Ms Peden’s excellent skeleton argument. In our judgment, however, there is nothing in the facts which establishes even on the lower standard that BB is a man with anything other than a degree of local power. He is described in the papers as being an ‘investigator’. No indication is given of his rank. The fact that he held sway in one part of the country, and was able to get away with the acts which we have described above, is no indication that he holds the sort of power and influence which would enable him to pursue the appellant into one of Kazakhstan’s other sixteen other regions. In making that observation, we do not require the appellant to corroborate his account; we require him to set out an account which justifies international protection. The former is objectionable in refugee status determination, the latter is not. The facts asserted by the appellant do not suggest that BB is an officer with power and influence throughout Kazakhstan.

41. Almaty, from which the appellant hails, is in the southeastern corner of the country. Aktau, one of the cities to which the appellant could be returned directly and on which Mr Wain placed reliance, is in the southwestern corner of the country, nearly 3,000 kilometres away on the shores of the Caspian Sea. It is in our judgment quite fanciful to suggest that the appellant’s return to that city would come to the attention of BB and his associates. He was not prevented from leaving the country and there is nothing in the evidence before us to suggest that any criminal charges have been levelled against him to date. There is no reason that his return to Aktau would come to the attention of BB. The appellant remains in contact with his family in Almaty and there have been no visits to the family home. The reality of the case is that BB opportunistically thought that he could defraud the appellant and he was allowed to undertake such activity in his local area, but there is no reason to think that his sphere of influence would extend beyond Almaty to Aktau.

42. There was a suggestion on the part of the appellant that BB would be able to use a database and would be able to trace him in that way. We have been unable to find any support for this assertion in the background material or the expert report of Mr Kupatadze. We note that “Kazakhstani citizens can travel freely but must register their permanent residence with local authorities” (Freedom House report of 29 February 2024, at AB/126) but there is no suggestion of a national register which would enable a police officer in Almaty to trace a Kazakh national in Aktau. The position in that respect would appear to differ from that which faces non-nationals, who are required to register with the migration police: USDOS Human Rights Report of 30 March 2021, at [AB/289], amongst other source in the bundle.

43. It is in that context that we asked Ms Peden about two particular sentences in Mr Kupatadze’s report, which are from his [24] and [25]:

“State affiliated rogue actors have the capacity to target individuals throughout the entirety of Kazakhstan’s territory.” […] “While the country possesses appropriate legislation in this regard, shortcomings in enforcement mechanisms have led to recent incidents involving police officers breaching individual’s personal data.”

44. The first of those sentences is supported at footnote 30 by reference to the USDOS Trafficking in Persons Report 2019 but we were unable to find anything within that report which supported the statement. Nor could Ms Peden. The report does contain the following paragraph:

NGOs continued to report traffickers bribed low-ranking police officials to avoid these charges and alleged that some police officers facilitated forced labor or sex trafficking crimes. The government reported law enforcement efforts in two cases of alleged official complicity in 2018, including an ongoing investigation of the Director of the Center for Employment and Social Protection in Turkestan for labor trafficking, and an ongoing court case against a police officer in Kostanay province for covering up potential trafficking crimes.

45. But neither that section of the report nor any other supports the appellant’s suggestion that a rogue police officer at one end of this sprawling country could use official systems to locate him thousands of miles away.

46. As for the second sentence we have reproduced above, we attempted to follow the hyperlink in footnote 32 of the report, and we invited Ms Peden to do the same. The source cited, from a publication called Kaztag, is not in English. The title of the article is “Police investigating leak of personal data of more than 11mln citizens of Kazakhstan”, which does not suggest that the police were themselves responsible for “breaching” the personal data in question.

47. In summary, therefore, we do not consider there to be any reason why the appellant would not be safe in Aktau. The difficulties with BB occurred some years ago and there is no current suggestion of the appellant facing any charges or otherwise being pursued. The place of relocation suggested by the respondent is nearly 3,000 kilometres away. There is no national system of registration for Kazakh nationals, and there is simply no reason to think that a police investigator such as BB would have the either wherewithal to discover that the appellant had returned to Aktau or the inclination to pursue him there.

48. We must therefore consider whether it would be unduly harsh for the appellant to relocate to Aktau. We take account of the fact that he has never lived there. We also take account of the fact that the Chechens form a minority in Kazakhstan and that they face some discrimination there, as is clear from [6]-[13] of Mr Kupatadze’s report in particular. We note that Mr Kupatadze expressed no particular concern about any difficulties which the appellant might face in Aktau or any other place of relocation.

49. Having considered the background evidence as a whole, we consider the position to be as follows. The appellant is a fit and healthy young man with higher education and a record of running his own business. His primary language is Russian and his ethnicity is Chechen. Both of those factors are likely to result in some discrimination in obtaining employment and other matters but the background evidence does not suggest that the appellant would not be able to live a relatively normal life by Kazakh standards. Aktau is a relatively prosperous ‘oil city’ (the USDOS Human Trafficking report refers) and we consider that the appellant would be able to establish himself there without suffering undue hardship.

50. We reach that conclusion without reference to the Voluntary Returns Service to which the respondent referred in the letter of refusal and the Review. We note that the appellant might, according to those documents, be eligible for up to £3000 in assistance and we also note the importance which was attached to such assistance in OA (Somalia) CG [2022] UKUT 33 (IAC). In the event that such support was available, it would serve to reinforce our view that the appellant could relocate to Aktau without suffering undue hardship.

51. We therefore conclude that the appellant could relocate safely and reasonably to Aktau, and that internal relocation provides a good reason for concluding that the serious harm which befell the appellant in the past would not be repeated. The appeal will therefore be dismissed on protection grounds. We record that no alternative arguments were pursued before us.

Notice of Decision

The decision of the First-tier Tribunal having been set aside in part, we remake the decision on the appellant’s appeal by dismissing it on protection grounds.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 March 2025

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004878

First-tier Tribunal No: PA/67139/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

SA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Peden, instructed by Parker Rhodes Hickmott Solicitors
For the Respondent: Mr Wain, Senior Presenting Officer

Heard at Field House on 3 January 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court. This order is made to protect the identity of a person seeking internation protection under the Refugee Convention.

DECISION AND REASONS

1. The appellant appeals with the permission of Judge Clarke against the decision of Judge Young-Harry (“the judge”), who dismissed his appeal against the respondent’s refusal of his protection claim.

2. The appellant is a national of Kazakhstan of Chechen ethnicity. He was born on 2 January 1994.

3. The appellant entered the United Kingdom holding entry clearance as a visitor on 30 August 2021. He claimed asylum in October 2021 and completed a Preliminary Information Questionnaire (“PIQ”). In the PIQ and in his screening and substantive interviews, the appellant stated that he had been the victim of extortion demands at the hands of a rogue police officer (“BB”). He stated that he had handed over two sums of 500,000 Kazakhstani Tenge (approximately £760 each) but that he had decided to flee when BB tried to persuade him to take out a bank loan of 15 million Tenge (approximately £23,000). He stated that BB’s associates had been asking after the appellant since he had left the country.

4. The respondent did not accept that the appellant had given a truthful account. She suggested that there were various inconsistencies in the accounts he had provided, and noted that he had in any event been able to leave on his own passport. The respondent considered that there would be a sufficiency of protection from BB and that the appellant could relocate so as to avoid any threat from him.

The Appeal to the First-tier Tribunal

5. The appellant appealed to the First-tier Tribunal. The judge heard the appeal on 8 August 2024, sitting in Birmingham. The appellant was represented by Ms Peden, as she was before me. The respondent was represented by a Presenting Officer (not Mr Wain). The judge heard oral evidence from the appellant and submissions from the representatives before reserving her decision.

6. In her reserved decision, the judge concluded that the appellant had given a credible account of events in Kazakhstan: [15]. She noted that the appellant’s expert (Alexander Kupatadze) confirmed that there was discrimination against ethnic minorities including the Chechens and that officers engaged in corrupt practices with impunity: [16]. The judge dismissed the appeal on protection grounds, however, because she concluded that the appellant could relocate so as to avoid the risk from BB for the following reasons:

[17] In relation to internal relocation, the report states that state affiliated actors can target an individual throughout the territory because officers are known to breach the personal data of individuals. The report specifically states that police officers can have influence, and if the officer in question in the appellant’s case, holds power and connections within law enforcement, that officer’s reach could extend beyond a specific region. I note he makes a distinction between officers who hold power and connections being able to locate individuals and those without specific power and connections. Finally, the report states for those who do internally relocate, they are not likely to receive protection if required.

[18] Although I accept the appellant became the victim of a rogue corrupt police official, I do not find the appellant has shown that this particular officer holds the power and connections within law enforcement, which would enable him to target and locate the appellant in a different part of the country. It was open to the appellant and the burden was on the appellant to provide additional information about this particular police officer, to show his level of influence, the position he holds, the possible connections he may have etc, however he has failed to do so.

[19] Although the appellant contends, he would have to register in a new area, however he has failed to show that the officer would even be aware that he has returned to the country. I am therefore satisfied that internal relocation is an option. I find the appellant can return and live in a different part of the country away from the reach of this particular officer.

The Appeal to the Upper Tribunal

7. Ms Peden settled the grounds of appeal to the Upper Tribunal. There were two:

(i) The judge had misdirected herself in law, by misapplying the standard of proof and requiring the appellant to produce corroborative evidence; and

(ii) The judge had failed to have regard to material aspects of Mr Kupatadze’s report, or had given insufficient reasons for rejecting his conclusions.

8. In her concise oral submissions, Ms Peden argued that the judge had fallen into error at [18]-[19] in requiring the appellant to corroborate the standing of BB. The proper approach, she submitted with reference to Karanakaran v SSHD [2000] Imm AR 271, was for the judge to consider whether he could ‘safely discard’ that BB was a well-connected individual. She submitted that the judge had in any event failed to analyse the evidence which did shed light on that question. As for ground two, Ms Peden submitted that Mr Kupatadze had given relevant evidence about the availability of internal relocation and sufficiency of protection and the reasons given by the judge for rejecting those conclusions were inadequate.

9. For the respondent, Mr Wain opposed the appeal. He submitted that there was a clear absence of evidence concerning the standing of BB. The judge had been entitled to seize on that, and to do so was not contrary to what was said in MAH (Egypt) v SSHD [2023] EWCA Civ 216; [2023] Imm AR 713 and other authorities. The appellant had asserted in his witness statement that BB was a man of power and influence but had failed to adduce evidence in support of that assertion. Mr Wain recognised that Ms Peden might legitimately ask what evidence there could have been in support of this assertion but the answer was quite clear in his submission; Mr Kupatadze could have commented on the point but had not done so. The most Mr Kupatadze had said, however, was that the feasibility of internal relocation depended on the facts, and on the power and influence of the appellant’s pursuer. The judge had been entitled to conclude that the appellant had failed to discharge the burden of proof.

10. Ms Peden replied briefly, submitting that the judge had failed to consider the evidence which did shed light of the extent of BB’s connections.

Analysis

11. In most respects, I prefer the submissions made by Mr Wain.

12. I do not accept that the judge misdirected herself in law in respect of the standard of proof. She gave herself a clear and correct self direction as to the lower standard of proof which applies in protection claims at [6] of her decision and there is nothing elsewhere in the decision which suggests that she departed from that approach. Ms Peden was in error in submitting that the judge should have considered whether she could ‘safely discard’ what the appellant said about BB; that submission was based on a misunderstanding of what was said by Brooke LJ at [102] of Karanakaran.

13. Nor do I accept that the judge misdirected herself in law by requiring the appellant to corroborate his asylum claim. As Mr Wain submitted, a judge is entitled to draw an inference where an asylum seeker fails to adduce evidence which he might reasonably have obtained concerning a matter in issue. To draw such an inference entails no legal error in the context of a protection claim. What does amount to an error in this context, however, is to require an asylum seeker to provide proof of a matter in issue. The judgment of Singh LJ in MAH (Egypt) shows that judges might unwittingly err by imposing such a requirement in substance, even where they purport to adopt a compliant approach. In this case, however, I accept Mr Wain’s submission that the judge’s approach was not one in which she required the appellant to corroborate his account of BB’s standing; there was an expert report before her which overlooked that obvious question and she was entitled to draw an inference from the absence of evidence on the point.

14. I do not accept that the judge gave inadequate reasons for rejecting Mr Kupatadze’s report. The judge did not reject his conclusions, and this was not a case such as SS (Sri Lanka) v SSHD [2012] EWCA Civ 155, in which it was incumbent on the judge to provide cogent reasons for departing from the opinion of an expert. The judge accepted all that was said by Mr Kupatadze but found that BB was not a person with the power and influence which the expert considered necessary in order to prevent the appellant relocating. That was not to reject or disagree with the expert; it was to evaluate the case in accordance with his opinion.

15. It is equally clear to me, however, that the judge did err in one of the manners asserted by Ms Peden. Although the judge was entitled to observe that the appellant had failed to provide ‘additional evidence’ about the police officer, what she failed to consider was the evidence which the appellant had provided about BB’s standing. The judge accepted that the appellant was a credible witness in relation to past events, and his account of those events actually shed an appreciable amount of light on the extent of BB’s power and influence. That evidence was as follows.

16. Whilst the appellant’s account of his interactions with BB began in a bar, where the two had a physical altercation, the appellant went on to state that BB had required him to attend the police station the following day. That tends to suggest that BB was of sufficient standing to be confident that his unofficial and criminal actions would not result in any difficulty for him at his place of work. I note that the appellant also stated that BB did not act alone at the police station. Two other officers were said to be involved in ill-treating the appellant over the course of half an hour or so in order to compel him to part with the first payment of 500,000 Tenge.

17. There was then a further instance of extortion before BB upped the ante and sought to coerce the appellant into taking out a bank loan which was to be handed over to him. The appellant explained in his witness statement before the FtT that he was the proprietor of a small business and that he had been doubtful that he would be able to take out a loan of several million Tenge. He was assured by BB, however, that he had “a person in the bank who would help with obtaining the bank loan … so that the money would be approved for me”. This would tend to suggest that BB had connections in the bank who could assist him with his unlawful scheme.

18. Further evidence of BB’s connections was to be found in the appellant’s account of what had occurred after his departure from Kazakhstan. He asserted in his statement that people connected to BB had visited his place of work on 31 August and 3 September 2021, asking about his whereabouts. I note that this assertion was supported by a short statement from another small business owner, who said that two men had come looking for the appellant on those dates and had told her ‘to pass on the message … that he would have big troubles if her failed to get in touch with [BB]’.

19. The judge was entirely correct, therefore, to note that Mr Kupatadze’s report drew a distinction between police officers with power and influence and those without it. She was also entirely correct, with respect, to note that the appellant had not produced ‘additional evidence’ about BB’s standing. Where she erred, however, was in her failure to consider the evidence which had been given by this credible appellant about BB’s connections. At its highest, that evidence at least tended to suggest that BB was not acting alone, and that he had others within the police force and the banking sector who were willing to his bidding in furtherance of the plan to extort significant sums of money from the appellant. Arguably, therefore, there was evidence to suggest that BB was a person of power and influence who would be able to trace the appellant on return to Kazakhstan and deny him the sufficiency of protection which was thought by the respondent to be available.

20. It is for these reasons that I will set aside the judge’s decision in part. I do so because her analysis of the risk to the appellant, and the feasibility of internal relocation, cannot stand. There is no error of law in her finding that the appellant is a credible witness as to the past, and those findings shall stand. There will be a further hearing before the Upper Tribunal at which there will be an assessment of the future risk to the appellant and as to internal relocation and sufficiency of protection. In the latter connection, the parties will wish to remind themselves of what was said by the Court of Appeal concerning rogue state agents in Svazas v SSHD [2002] EWCA Civ 74; [2002] 1 WLR 189.

21. I make a single direction:

No later than five working days before the resumed hearing, the appellant shall file and serve a composite bundle which complies with the President’s Guidance on Electronic Bundles.

Notice of Decision

The decision of the FtT is set aside to the extent above. The decision on the appeal will be remade in the Upper Tribunal following a further hearing on a date to be notified.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 January 2025