By John Helmer, Moscow
Andrei Borodin claims that the case against him for fraud and grand larceny from the Bank of Moscow is politically motivated, and that he is the target of persecution by the Russian law enforcement authorities, acting on the orders of senior officials. He alleges that Prime Minister Dmitry Medvedev is the official giving the orders.
The British Government has considered Borodin’s claims in secret proceedings in which Borodin’s lawyers appeared; the Russian Prosecutor-General and the Bank of Moscow did not. There is no public record of the evidence which was presented; no public record of the judge; no public record of the judgement. Borodin was represented by a law firm which includes the former chief counsel of GCHQ, the espionage agency. He isn’t saying what he did for his client. The Home Office, the cabinet-level ministry in London equivalent to the Ministry of Internal Affairs in Moscow, refuses to say if Borodin has been authorized to remain in the country. It refuses to say if its minister, the Home Secretary, issued Borodin with a residency permit on the basis of a court order, or on the basis of the regulation allowing the minister to grant “discretionary leave”. If Theresa May, the Home Secretary, took such a decision, the one certainty is that the Prime Minister, David Cameron, authorized it.
So, between Borodin’s claim of innocence and persecution, and the claims of crime by the Russian Prosecutor-General, haven’t the British Government’s highest officials done for Borodin exactly what Borodin accuses Russian Government officials of doing against him?
The charges against Borodin relate to the Bank of Moscow loan book, and one in particular – a transaction chain in 2009 which ended in a loan from the bank which ended up under the control of Yelena Baturina, wife of then Moscow mayor Yury Luzhkov.
By investing a substantial sum in the UK, Baturina has acquired residency under the terms of the UK’s investment visa scheme. Luzhkov has been granted a UK residency visa as a dependent of his wife. The story of Luzhkov’s clash with Medvedev, as the latter attempted to establish himself for a second term of president, can be read here [1]. The British media record for telling lies and publishing libels about Baturina ended up [2] in London’s High Court, and then in an out of court settlement in Baturina’s favour in October 2011 [3].
Borodin has employed a London public relations company called Gardant and a press agent called Lawrence Dore. He also operates an “official website”. In one of its sections, Borodin has published some of the correspondence he has had with the Russian prosecutor’s office, along with a detailed defence assembled by his Moscow lawyers against the fraud allegations. According to his appeal against the indictment, dated December 2011, the evidence in the Baturina loan affair was obtained by “anti-Constitutional invasion of privacy and is inconsistent with the facts of the case”. As for the alleged fraud, Borodin’s defence [4] is that “the stolen pecuniary funds, viewed by the investigators as stolen, never came into A.F. Borodin’s possession, nor was he able to dispose of the same”.
Through interviews arranged by Dore, Borodin has made a variety of claims in selected London newspapers about being the innocent target of a frame-up for political reasons; extorted by intermediaries sent from the Kremlin; and denied fair market value for his stake in the Bank of Moscow. When asked for names and dates, Borodin refuses to answer. So does Dore. So do the British reporters who have taken dictation from the two of them.
As for Borodin’s claim that he was cheated by an under-valuation of his Bank of Moscow shareholding when he sold it to the state-controlled VTB, Borodin provides no evidence apart from telegrammes to then Finance Minister Alexei Kudrin, and VTB chief executive Andrei Kostin, dated March 2011. These say Borodin and a group of investors want to buy from VTB the 46.48% stake which had already been sold by the city government. The only financial precision in the telegrammes is the sum of Rb1,958.66; that was the cost of sending the telegrammes.
The London Daily Telegraph has published Borodin’s claim of being extorted, but the reporter, Con [sic] Coughlin, dismissed questions about Borodin’s veracity by claiming [5] that asking for verification was tantamount to “working for the FSB”.
In May of 2012 Borodin told the London press that the Home Office had rejected his application for asylum. The Daily Mail reported [6] at the time: “The former head of the Bank of Moscow Andrei Borodin, 45, and his deputy Dmitry Akulinin, 46, both exiled in London, are being denied asylum status by the Home Office, say sources close to the men.”
Last Friday, March 1, the Financial Times reported what it said was Borodin’s “first UK interview since receiving asylum in February. Mr Borodin, 45, said he was only safe in Britain after alleging he was pressured to sell his stake in a bank he founded, Bank of Moscow, as part of a state asset grab.” The newspaper cited noone apart from Borodin for substantiation of the asylum claim. “The Home Office declined to comment,” the newspaper’s reporters, Caroline Binham and Neil Buckley, noted.
The Telegraph was more cautious [7], and not having been granted an exclusive with Borodin, the Moscow correspondent for the newspaper, Tom Parfitt, put the asylum claim in the hypothetical category. “Andrei Borodin, 45, the former president and co-owner of the Bank of Moscow who is wanted in Russia for alleged fraud, told the Vedomosti daily that he had been granted asylum by UK authorities in the last few days. If true, the asylum decision is likely to cause fresh tension…”. The Guardian has ignored Borodin’s claims entirely, and not reported on the alleged asylum decision. The Evening Standard, owned and operated by Alexander and Evgeny Lebedev, reported that Borodin had “been given asylum”, but sourced that in this fashion: “His lawyer today said the billionaire banker, who escaped to London in April 2011, has now been granted the right to stay.” Asylum and the “right to stay” aren’t the same thing, even if Borodin makes it appear so.
The BBC version has been republished by Borodin on his website [8]. The original BBC text [9] and Borodin’s version aren’t the same, however. The original BBC report sources the asylum claim to Borodin’s statements to a Moscow newspaper. It adds: “ BBC News established Mr Borodin had indeed been granted asylum” – without explaining how. The Borodin version – an English translation of a BBC Russian Service report – claims: “Andrei Borodin had to produce solid proofs of his having been pressured politically in Russia.”
So far noone, not even Borodin himself, has come up with whatever those “proofs” are.
James Lyons is a Home Office spokesman, and he is adamant that “we don’t comment on individual cases.” Supposing Borodin had been telling the truth when he reported that the Home Office had rejected his application for asylum in May 2012, what was his recourse? Lyons explains that appeals against asylum decisions by the Home Office can be filed to the Immigration and Asylum Tribunal.
The Ministry of Justice describes what this is, and how asylum appeals can go in the first instance to the first-tier tribunal called the Immigration and Asylum Chamber. This is said to be [10] “independent”. There is also a related tribunal called the Special Immigration Appeals Commission; it deals with [11] cases involving “national security grounds” or “other public interest reasons”.
The top dog of the system is Justice Sir Nicholas Blake. One of the judges describes [12] the system as “family friendly” and “refreshingly egalitarian”. Neither of them has the power to decide what appeals go to which of the two courts, the Chamber or the Commission. That power is held by the person whose decisions are being appealed – by the Home Secretary. According to a recent paper from the House of Commons Library, the Home Secretary can dictate how an appeal of a decision can be channelled. Borodin might therefore have been told to direct his appeal to the Commission by “a decision taken in accordance with a personal direction from the Secretary of State wholly or partly in the interests of national security or in the interests of the UK’s relationship with another country.”
The Joint Committee on Human Rights of the British parliament is arguing against the Cameron government’s attempts to make the proceedings of the commission even more secret, and less subject to court or public scrutiny, than they already are [13].
The commission has three members. These appear to be Justice Sir John Mitting, the chairman; senior immigration judge Andrew Jordan; and Sir Stewart Eldon. Eldon was a diplomat, whose last job before retirement was as UK representative to NATO.
The appeals Chamber disposes of about 6,000 appeals a year, according to its records. But it doesn’t record the outcomes or the judgements. The reason, according to a court document [14], is that recording is an administrative nuisance. “Most decisions of the Chamber are unreported. It is not considered conducive to the overriding objective for thousands of fact sensitive decisions to be published, placing onerous obligations on advocates and litigants in person to search for decisions of potential relevance to their own.”
In fact, say London practicioners and legal experts in asylum and other immigration cases, the structure is so complex it is very difficult for lawyers engaged by clients to follow what has happened.
Statistics on asylum applications published by the Home Office show that the number of applicants has been falling sharply over the past decade, and that the majority of applicants come from Afghanistan, Zimbabwe, Iran, Eritrea, Iraq and Somalia. Russian applicants for UK asylum are a tiny fraction of these numbers; the Home Office data don’t reveal how many.
In order to know how cases involving Russians applying for asylum have been handled, a UK lawyer concedes that he must learn what evidence the Home Office is accepting or rejecting from other lawyers. As for how asylum appeals for Russians have been decided by single judges, the source says the lawyer and client grapevine is all he has to go on. “The whole system of what is reported and what is not reported,” according to one of its participants, “is a minefield.”
That is, a political minefield — because the Home Office and the immigration judges are obliged to pass judgement on evidence like that claimed publicly by Borodin. According to a Russian source, an applicant like Borodin can make sure there is no public accountability for his claims by requesting the court hear his appeal against the Home Office decision in camera. The ruling to close the court door is also secret. Thus, it happens that one secret non-accountable proceeding by the Home Office turns into a another secret, non-accountable proceeding in a chamber (or commission) whose presiding judge keeps his or her name as secret as the evidence and his (or her) judgement of it.
Lyons for the Home Office confirms that when the Immigration and Asylum Chamber overrules an earlier decision by the Home Office, an official confirmation is despatched. “We would know about it,” Lyons says. So, has the Home Office received a notice of a proceeding or an outcome of an appeal before the Chamber (or the Commission) on the part of Borodin? Lyons responds that “if you want to confirm any judgement was issued [in relation to Borodin],” the Home Office refers the question to the spokesman for the Chamber.
James Rea is spokesman at the Justice Ministry for the Immigration and Asylum Chamber. He was asked:
1. Has the Immigration and Asylum Tribunal received an appeal application in relation to asylum in the UK from Mr Andrei Borodin?
2. Has the Tribunal issued a judgement or ruling on Mr Borodin’s application?
3. If the answer to Q2 is yes, is the ruling secret or public?
4. If public, please provide a copy or link to the publication.
Rea replied: “I have received your email and answerphone message. I will be in contact this afternoon with answers to your questions.” There has been no further communication.
Borodin has identified his Moscow lawyers as including Dmitry Kharitonov, and in London BCL Burton Copeland. Kharitonov ducked telephone calls for a day, and was asked by email the same questions as were asked at the Justice Ministry. He was also asked to clarify if “Mr Borodin received permission for residency without asylum?”
According to London lawyers handling these types of cases for Russians and others, current British statutes allow protective residency to be granted to fugitives or refugees on three grounds: as asylum, regulated by the 1951 United Nations Convention Relating to the Status of Refugees; according to the 1950 European Convention on Human Rights; or according to what the lawyers call the Home Secretary’s “discretionary leave”. Borodin may call these whatever he likes, but only one of them is asylum, as this is defined in UK law. And that requires evidence that the person applying for it is likely to face unlawful persecution, unfair trial, etc., if he were to return.
At Borodin’s London law firm BCL only one senior lawyer identifies himself as having expertise and legal practice in immigration and asylum cases. This is Michael Drury. If he has been Borodin’s lawyer in negotiating with the Home Secretary, and then with judges of the Chamber and Commission, he refuses to say. Drury also refuses to confirm (or deny) what Borodin has been claiming in public about the reason for his residency permit. What Drury may know about Russia he is likely to have learned from electronic surveillance, which is the specialization of the spy agency GCHQ, for which Drury was director of legal affairs from 2006 until he joined BCL in 2010. According to Drury’s law firm resume, “At GCHQ, Michael had control of the full range of legal issues and has unrivalled expertise in the fields of interception and surveillance.”
Without reporting from the courts, or a record of how Borodin overcame the dismissal of his asylum application in 2012, it can only be concluded that the evidence presented came from Borodin himself, or from Drury, the ex-spy. Borodin has politicized his predicament from the start. Has Drury done the same?
In the limited record available of British government rulings on Russian asylum cases, much has been alleged about political persecution, corrupt judges, and prosecutors acting illegally on Kremlin orders. But very few cases have been decided in the UK courts, or judgements issued on these claims. The best-known case of a Russian asylum grant was that of Boris Berezovsky. He received UK asylum in September 2003. Last year, however, High Court Justice Dame Elizabeth Gloster decided Berezovsky was a self-delusional liar; she rejected almost everything Berezovsky had claimed about his political machinations during Boris Yeltsin’s presidency, and the political machinations against him after Vladimir Putin succeeded to the presidency. Gloster’s judgement [15] was the most detailed to have examined, and dismissed, the claim of political persecution by a Russian with asylum in the UK.
For several years after the Berezovsky decision, and partly because government officials doubted the wisdom of it in retrospect, London immigration lawyers believed informal guidance they gathered from Home Office officials that asylum would not be granted to Russians. They were also told that extradition requests from Moscow would generally not be granted either, nor would Russians accused of business crimes in Moscow be deported. That policy, sources now say, has been changed.
The problem is that because the British government has erected an impenetrable wall of secrecy around the proceedings, it is impossible to know whether the Home Secretary and the Immigration and Asylum Chamber are granting residency permits on explicit asylum criteria, or fudging them with “discretionary leave”. In 2010, Berezovsky business associate at Aeroflot, Nikolai Glushkov, received asylum, or so he has reported. A year earlier, the mobile telephone entrepreneur Yevgeny Chichvarkin applied for asylum for himself and his family. In 2009 and 2010, the Home Office rejected the application, and Chichvarkin appealed to the High Court, where he lost his appeal. This is one of the rare cases of Russian asylum which has been fully reported [16]. In the event, after the Russian courts ruled in 2011 to dismiss the charges against him at home, the extradition request was withdrawn, the asylum bid abandoned.
The Chichvarkin exception proves the rule. That is, British decision-making on asylum for Russians turns out to be secretive, arbitrary, non-accountable, and ultimately political. No different from Borodin’s allegations about his treatment by the Russian authorities.