Banomova v Secretary of State for the Home Department Case C/2000/3674
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CLARKE,LORD JUSTICE THORPE,MR JUSTICE BUTTERFIELD |
| Judgment Date | 25 May 2001 |
| Neutral Citation | [2001] EWCA Civ 807 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C/2000/3674 |
| Date | 25 May 2001 |
[2001] EWCA Civ 807
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM A DETERMINATION OF
THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Clarke and
Mr Justice Butterfield
Case No: C/2000/3674
Mr Peter Jorro (instructed by Gill & Co for the Appellant)
Mr Robin Tam (instructed by the Treasury Solicitor for the Respondent)
Introduction
This is an appeal from a decision of the Immigration Appeal Tribunal ("IAT") dated 31 st July 2000 dismissing the appellant's appeal from a determination of a special adjudicator dated 6 th June 2000 in which he dismissed the appellant's appeal against the decision of an immigration officer made on 15 th March 1999 in which he refused her leave to enter the United Kingdom.
The appeal against the decision of the immigration officer was lodged on asylum grounds under section 8(1) of the Asylum and Immigration Appeals Act 1993. The appellant had arrived in the United Kingdom from Slovakia on 22 nd July 1998 and immediately claimed asylum. She was subsequently refused asylum by a letter written on behalf of the respondent dated 4 th February 1999. She appeals to this court pursuant to permission given by Simon Brown LJ having been refused permission by the IAT.
The Facts
The facts may be stated shortly as follows. The appellant was born in Michalovice on 4 th October 1979 in the then Czechoslovakia to a Roma father and a non-Roma Slovak mother. While she was at school and aged between about 12 and 14 she was bullied, hit and racially discriminated against by both teachers and non-Roma classmates, which made her cry and feel miserable. Thereafter between 1993 and 1996 while she was at upper school she was discriminated against by a chemistry teacher and ostracised by class mates once they discovered that she was Roma. When she was 16 she wanted to start going to discos but had problems in getting in because of anti-Roma racial discrimination. The same happened at restaurants.
The appellant's mother died on 24 th December 1996. She had often been criticised over the years by her neighbours for marrying a "gypsy man". After she died the appellant and her remaining family were subjected to a hate campaign by neighbours who wanted them out of their village. The appellant was pointed at and verbally abused in the street and other young people with whom the appellant wanted to make friends, were discouraged from talking to her by their parents. In the summer of 1997 the family dog was shot and killed. The family suspected that one of their neighbours was responsible, although none of the other neighbours was prepared to provide any information so that there was no point in reporting it to the police. Also in the summer of 1997 the appellant's family chickens were killed. A further example of the problems faced by the appellant and her family was that they were refused service in a local restaurant in April 1998 on the pretext of there being no room when in fact there clearly was room.
Those facts are no more than background to the crucial events, which occurred in July 1998. At about 1.00 am on 3 rd July 1998 the family home was subjected to what can fairly be described as a terrifying invasion. While they were sleeping masked men came to their house and rang the bell. When the appellant's father opened the door they burst in, the appellant and her family were all tied up and her father was taken away and severely beaten. They were told that if they did not leave there would be further trouble. They stole everything of value and smashed furniture, cupboards and wall units and ripped out the telephone. The appellant's father was taken to the cellar and again severely beaten. The men finally left warning the family not to call the police, locking them in and warning them that they would be watching from outside. They said that if they went to the police they would know all about it.
Later in the morning the appellant managed to free herself and the others and her father climbed out of the window, went to a telephone box and called his brother who persuaded him to call the police. Four or five police officers arrived during the afternoon to take down details of the incident. They looked round the house and took photographs. They then took the appellant's father to hospital. However, the next night the appellant's family received a telephone call in which the caller told them to withdraw their complaint to the police or they would be attacked again as before. On 4 th July the family discovered that their animals, namely a pig and some chickens, had been killed. Later that day they received another threatening telephone call. On 5 th July following those threats the appellant's father went to the police and withdrew his complaint. He told them that he was taking it all back because of the threats. The police allowed him to withdraw his complaint but said that he could reinstate it if he wanted to. On 7 th, 8 th or 9 th July a note was stuck to the gate of the appellant's home saying among other things "we will kill you".
Because of those events the appellant and her family left Slovakia by air on 22 nd July, that being the earliest date on which her father could obtain tickets. They arrived in the United Kingdom and immediately claimed asylum. The appellant was interviewed by an immigration officer and I have already described the proceedings which followed.
Those facts are taken from the evidence of the applicant which, so far as I can see was accepted by the special adjudicator, before whom she gave evidence, and by the IAT.
I am not sure what happened to the remaining members of the family, although we were told that the appellant's father had his claim for asylum refused and that his subsequent appeals have failed. I do not know whether it is common for cases involving members of the same family and essentially the same facts to be considered separately. However, if it is, I would like to say in passing that it seems to me to be unfortunate. It is surely preferable for the claims for asylum of members of the same family to be considered and determined at the same time on the same evidence and for any appeals from relevant decisions to be heard and determined at the same time.
The Issues
The issues identified by Mr Jorro on behalf of the applicant as arising on this appeal are these:
(1) whether the IAT erred in finding, on the facts on the appellant's particular case, that there is sufficient protection for her in the Slovak Republic as measured by the appropriate minimum international standard for such, so that what she fears does not amount to being persecuted for the purposes of Article 1A(2) of the Refugee Convention;
(2) whether the IAT erred in failing to find that the appellant, in the particular circumstances of her case, is unwilling owing to her well-founded fear of being persecuted by reason of her race, to avail herself of the protection of her country; and
(3) whether the IAT erred in failing to find that the applicant as a half-Roma is at a greater risk of mistreatment, amounting to her being persecuted by reason of her (mixed) race, than full-Roma are in the Slovak Republic.
I shall consider those issues in turn.
Issue 1
Mr Tam, who represented the respondent, reformulated this issue in this way: whether the IAT should have found that Slovakia does not provide an adequate level of protection against ill-treatment by non-state agents because members of the police investigating a criminal incident permitted the appellant's father to withdraw his complaint after he had to their knowledge been threatened. I do not think that there is any significant difference between the formulations of this issue adopted by each of the parties.
As I see it, the resolution of the issue depends to a large extent upon the application to the facts of this case of the principles set out by the House of Lords in Horvath v Secretary of State for the Home Department [2000] 3 WLR 379. The leading speech was given by Lord Hope, who set out a brief summary of the facts on page 381, but they can perhaps best be seen from paragraphs 6 and 7 of the judgment of Stuart-Smith LJ in this court. He said at [2000] INLR 15 at pp 19–20:
"The facts can be succinctly stated. The appellant is 26. He comes from a village called Palin from the county of Mikhalovice, where the Roma community, to which he belongs, are a small minority. On 15 October 1997 he arrived in the UK with his wife and child and claimed asylum. He stated he feared persecution in Slovakia by skinheads, against whom the Slovak police failed to provide protection for Roma. Among the episodes to which he referred was the beating to death of his father (which did not even lead the police to come to his house: 'They pretended it hadn't happened'), this was in 1985 under the communist regime; an attack on his brother by skinheads armed with vicious weapons; persistent attacks on his home, leading the appellant and his brothers to dig a hole in the ground in their back garden and regularly take shelter in it at night; the destruction by skinheads of every item in the appellant's home, leaving an empty shell; attacks on all the Roma in the appellant's village ('the police didn't want to get involved'); serious violent attacks on two Roma neighbours; and the murder of two others. He said that if they were returned to Slovakia he was afraid that he would again be persecuted by the skinheads because he was a gypsy. He will not get protection...
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