Horvath v Secretary of State and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stuart-Smith,Lord Justice Ward,Lady Justice Hale |
| Judgment Date | 02 December 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J1202-9 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: IATRF 99/0197/4 |
| Date | 02 December 1999 |
[1999] EWCA Civ J1202-9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEALS
TRIBUNAL
Lord Justice Stuart-smith
Lord Justice Ward and
Lady Justice Hale
Case No: IATRF 99/0197/4
Mr. R. Plender QC & Mr. S. Taghavi (instructed by Gill and Company for the Appellant)
Mr. J. Howell QC & Mr. R. Tam [Mr D Hart on 2/12/99] (instructed by the Treasury Solicitor for the Respondent)
Thursday, 2 December 1999
1.This is an appeal by Milan Horvath from a decision of the Immigration Appeal Tribunal (the Tribunal) given on 4 December 1998 by which the Tribunal dismissed his appeal from the Special Adjudicator, who in turn dismissed his appeal from the Secretary of State for the Home Department's decision to refuse his application for asylum. The Appellant is a member of the Roma community and is a citizen of Slovakia.
2.The appeal raises an important question as to how Special Adjudicators and the Tribunal should approach the problems of persecution by non-state agents, that is to say factions or elements in the population of a country for which the state has no direct responsibility. In particular, the question that falls to be determined is at what stage in the inquiry the fact finding tribunal should consider the issue of the applicant's inability or unwillingness, through fear of persecution, to avail himself of the protection of the state. This issue involves considerations as to the ability or willingness of the state and its agents to provide adequate protection from the activities of non-state agents. The question is of importance because it may be affected by the standard of proof to be applied in consideration of different aspects of a claim to asylum.
3.The Tribunal appears to have considered the question in the first instance as being relevant to the issue whether what the Appellant suffered amounted to persecution. But they also considered it as a separate question, namely whether the Appellant was unable, or unwilling through fear of persecution, to avail himself of the protection of the state. They decided both issues against the Appellant.
4.Counsel on behalf of the Appellant contend that the Tribunal were in error in so doing. Their submissions in outline are as follows:
(a) The Tribunal were in error in taking the question into consideration when deciding whether what the Appellant had been subjected to amounted to persecution. The sole question, on this aspect of the case, is whether the ill-treatment received by the Appellant at the hands of the non-state agents, and to be expected and feared from them on return to his country, amounts to persecution.
(b) The question falls to be considered when the Special Adjudicator or Tribunal is considering whether the Appellant's fear of persecution is well-founded. If it falls to be considered at this stage, then the lower standard of proof, namely that there is a reasonable likelihood of persecution if the Appellant is returned, is applicable ( R v Secretary of State for the Home Department, ex parte Sivakumaran and others [1998] AC 958). Had the Tribunal so considered it they would or should have concluded that the Appellant had a well-founded fear of persecution.
(c) That the Tribunal should not have considered the question as a separate issue. But if they were right to do so, their decision was perverse; alternatively they took into consideration irrelevant matter and in so doing reached a conclusion inconsistent with their own earlier finding.
(d) The grounds of appeal raise further matters, the most important of which is whether certain acts of discrimination affecting his ability to find work, and denial of normal public facilities including marriage and education for his child, considered separately or in conjunction with the persecution by non-state agents, amounted to persecution. These have been conveniently referred to as 'Category Three Rights' adopting the well-known classification by Professor Hathaway in his book 'The Law of Refugee Status' at page 109.
(e) Counsel for the Appellant made a number of other discrete criticisms of the decision of the Tribunal.
5.On behalf of the Secretary of State, Mr Howell, QC, in summary submitted:
(a) That the question whether the Applicant was unable, or through fear of persecution, unwilling to avail himself of the protection of the state was a discrete and separate issue which fell to be determined if the Appellant satisfied the Adjudicator or Tribunal that the ill-treatment amounted to persecution for a convention reason and that he had a well-founded fear of being persecuted if returned to Slovakia. It should not be considered as an ingredient in these two issues.
(b) Alternatively if his first submission was not correct, the Tribunal were right to consider it in relation to the question whether what the Appellant feared amounted to persecution and that it did not form part of the consideration of whether the Appellant's fear was well-founded.
(c) That the Tribunal's conclusion that the Appellant had not established that he was unable or unwilling through fear of persecution to avail himself of the state's protection was a finding of fact which the Tribunal were entitled to reach and it could not be impugned on the grounds of perversity or consideration of irrelevant material. Even if the Tribunal were wrong to consider the point in relation to the issue of persecution, this did not affect their conclusion on the protection issue.
(d) That the Tribunal did not misdirect themselves when considering whether abuse of the third category rights amounted to persecution and their decision on this could not be impugned.
6.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 United Kingdom 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 from the police who don't care at all about their problems. His written statement reported that "skinheads would come to our village and throw bombs into the homes of gypsies"; that "approximately 3 to 4 times a week neo-Nazis would….hurl abuse outside my windows that all gypsies must die", that the situation "caused me to fear for my life" and that he came to the United Kingdom because he wanted his child to grow up in a country in which she is not persecuted . He also stated that along with other Roma, he was unable to find work and the Slovak authorities failed to afford him normal public facilities including marriage and schooling for his child.
7.His application for asylum was rejected by the Secretary of State. His appeal was dismissed by the Special Adjudicator on the grounds of his credibility. The Tribunal, which consisted of three legally qualified members under the chairmanship of the President HH Judge Pearl, found that the Appellant's assertions of fact were consistent with the evidence relating to the position of Roma in Slovakia. In this context the Tribunal considered reports of the UNHCR, the United States State Department, the International Helsinki Federation for Human Rights and the Conference on Security and Co-operation. Accordingly they reversed the Special Adjudicator's conclusion on credibility. They stated that "there is enough evidence for us to conclude that the fear of the Appellant is well-founded''. This must be a reference to the fear of violence by the skinheads. It was not in dispute that the ill-treatment of the skinheads was by reason of his race. But the Tribunal concluded that this did not amount to persecution, because the Appellant had not discharged the burden of showing that he was unable or, through fear of persecution, unwilling to avail himself of the state's protection.
8.Mr Plender QC, on behalf of the Appellant, submits that that the Tribunal were in error to introduce the element of the state's ability to provide protection into the question whether what the Appellant feared amounted to persecution. He submitted that the ill-treatment by the skinheads involving acts of violence against his relatives and neighbours and the Roma community generally amounted to persecution.
9.Entitlement to refugee status is defined in Article 1 of the Geneva Convention and Protocol Relating to the Status of Refugees (1951) (Comd. 9171) and 1967 (Comd 3906). This provides as follows:
"A. For the purpose of the present Convention, the term 'Refugee' shall apply to...
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