Horvath v Secretary of State for the Home Department

JurisdictionEngland & Wales
Judgment Date06 July 2000
Judgment citation (vLex)[2000] UKHL J0706-2
Date06 July 2000
CourtHouse of Lords
Horvath (A.P.)
Secretary of State for the Home Department

[2000] UKHL J0706-2

Lord Hope of Craighead

Lord Browne-Wilkinson

Lord Lloyd of Berwick

Lord Clyde

Lord Hobhouse of Woodborough



My Lords,


The appellant is a citizen of the republic of Slovakia. He comes from a village called Palin in the county of Michalovce, where he lived with his wife and child and other members of his family. He and his family are Roma, who are known colloquially as gypsies. The Roma, who are widely distributed across the country, constitute about 10 per cent. of the population of Slovakia. They are a small minority in the village to which the appellant belongs. On 15 October 1997 he arrived in the United Kingdom with his wife and child and claimed asylum. He said that he feared persecution in Slovakia by skinheads, against whom the Slovak police were failing to provide protection for Roma. He also said that, along with other Roma, he had been unable to find work, that he had not been afforded the normal public facilities as to his marriage and schooling for his child and that in these respects he was being discriminated against. He maintained that he was afraid that if he and his family were returned to Slovakia they would again be attacked by skinheads as they were Roma, and that they would not get protection from the police.


His application for asylum was refused by the Secretary of State. The Special Adjudicator did not find him to be a credible witness and dismissed his appeal. The Immigration Appeal Tribunal found that his assertions of fact were consistent with other evidence which was before them about the position of Roma in Slovakia, so they reversed the Special Adjudicator's finding on credibility. But they concluded that, while he had a well-founded fear of violence by skinheads, this did not amount to persecution because he had not shown that he was unable or, through fear of persecution, unwilling to avail himself of the protection of the state. The Court of Appeal (Stuart-Smith, Ward and Hale LL.J.) dismissed his appeal against the determination of the tribunal: [2000] I.N.L.R. 15.


The parties are agreed that the issues in this appeal all relate to the proper construction of article 1A(2) of the Geneva Convention relating to the Status of Refugees 1951. The problem to which these issues are directed arises from the fact that the appellant's claim to refugee status is based upon the alleged insufficiency of state protection against persecution by non-state agents. It is not part of his case that he has a well-founded fear of persecution by the state itself or by organs or agents of the state. His claim is based on his fear of violence by skinheads, who are not agents of the state, and on the alleged failure of the state through its police service to provide him with protection against their activities. He also based his claim on discrimination in the field of employment, the right to marry and education, but the tribunal concluded that any abuse of his rights in respect of these matters did not amount to persecution. The Court of Appeal held that the tribunal were fully entitled to reach that conclusion, and there has been no appeal against that part of its decision to this House. Your Lordships are concerned only with the allegation of failure by the state to protect the appellant against the activities of non-state agents.


Article 1(A)(2) of the Convention (Cmd. 9171), as amended by the New York Protocol of 31 January 1967 (Cmnd. 3906), provides that the term "refugee" shall apply to any person who:

"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."


The following issues arise in the determination of the question raised by the problem that the parties have identified in regard to the allegation of persecution by non-state agents: (1) does the word "persecution" denote merely sufficiently severe ill-treatment, or does it denote sufficiently severe ill-treatment against which the state fails to afford protection? (2) is a person "unwilling to avail himself of the protection" of the country of his nationality where he is unwilling to do so because of his fear of persecution by non-state agents despite the state's protection against those agents' activities, or must his fear be a fear of being persecuted there for availing himself of the state's protection? (3) what is the test for determining whether there is sufficient protection against persecution in the person's country of origin - is it sufficient, to meet the standard required by the Convention, that there is in that country a system of criminal law which makes violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies? Or must the protection by the state be such that it cannot be said that the person has a well-founded fear?


These three issues raise questions about the structure of article 1A(2) and about the meaning of words and phrases used in various parts of that article. The point is commonly made in regard to the Convention that it is not right to construe its language with the same precision as one would if it had been an Act of Parliament. The Convention is an international instrument. So, as my noble and learned friend Lord Lloyd of Berwick has observed, its choice of wording must be taken to have been the product of the inevitable process of negotiation and compromise: Adan v. Secretary of State for the Home Department [1999] 1 A.C. 293, 305B-C. And the general rule is that international treaties should, so far as possible, be construed uniformly by the national courts of all states. This point also suggests that the best guide to the meaning of the words used in the Convention is likely to be found by giving them a broad meaning in the light of the purposes which the Convention was designed to serve. It will be necessary to examine the wording of the article. But it may be helpful as a starting point to identify the relevant purpose or purposes.


It seems to me that the Convention purpose which is of paramount importance for a solution of the problems raised by the present case is that which is to be found in the principle of surrogacy. The general purpose of the Convention is to enable the person who no longer has the benefit of protection against persecution for a Convention reason in his own country to turn for protection to the international community. As Lord Keith of Kinkel observed in Reg.v. Secretary of State for the Home Department, Ex parte Sivakumaran [1988] A.C. 958, 992H-993A, its general purpose is to afford protection and fair treatment to those for whom neither is available in their own country. In Canada (Attorney-General) v. Ward (1993) 103 D.L.R. (4th) 1, 12 La Forest J. said:

"At the outset, it is useful to explore the rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination. International refugee law was formulated to serve as a back-up to the protection one expects from the State of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations."


This purpose has a direct bearing on the meaning that is to be given to the word "persecution" for the purposes of the Convention. As Professor James C. Hathaway, The Law of Refugee Status (Butterworths, 1991) p. 112 has explained, "persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community." At p. 135 he refers to the protection which the Convention provides as "surrogate or substitute protection", which is activated only upon the failure of protection by the home state. On this view the failure of state protection is central to the whole system. It also has a direct bearing on the test that is to be applied in order to answer the question whether the protection against persecution which is available in the country of his nationality is sufficiently lacking to enable the person to obtain protection internationally as a refugee. If the principle of surrogacy is applied, the criterion must be whether the alleged lack of protection is such as to indicate that the home state is unable or unwilling to discharge its duty to establish and operate a system for the protection against persecution of its own nationals.


Although the matter does not arise for further discussion in this case, it may be worth noting that the literature suggests that states differ in their approach to the problem posed by persecution by non-state agents. As Laws L.J. explained in Reg. v. Secretary of State for the Home Department, Ex parte Adan [1999] 3 W.L.R. 1274, 1288-1289, France and Germany subscribe to the "accountability" theory, which limits the class of case in which a claimant may obtain refugee status to situations where the persecution alleged can be attributed to the state so that the status of refugee is not available, on the German view, where there is no effective state authority or, on the French view, the state authority is unable to provide protection. On the other hand a majority of the contracting states, including the United Kingdom, the United...

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