Horvath v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtImmigration Appeals Tribunal
Judgment Date04 December 1998
Date04 December 1998
CC/59978/98 (17338)

Immigration Appeal Tribunal

His Honour Judge D S Pearl (President) Mrs J Chatwani (Vice President), J A O'Brien Quinn QC (Vice President)

Milan Horvath
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
The United Nations High Commissioner for Refugees Intervening

P Jorro of the Refugee Legal Centre for the appellant

R Tam for the respondent

Cases referred to in the determination:

R v Governor of Pentonville Prison ex parte FernandezWLRUNK [1971] 1 WLR 987: [1971] 2 All ER 691.

East African Asians v United KingdomHRC [1981] 3 EHRR 76.

R v Immigration Appeal Tribunal ex parte Daniel Jonah [1985] Imm AR 7.

Sivakumaran and ors v Secretary of State for the Home DepartmentELR [1988] AC 958: [1988] Imm AR 147.

R v Secretary of State for the Home Department ex parte Zia Binbasi [1989] Imm AR 595.

Moezzi v Secretary of State for the Home Department (of 6 October 1988) [1989] Imm AR 600.

Gulzar Ahmad and ors v Secretary of State for the Home Department [1990] Imm AR 61.

Attorney General Canada v Patrick Francis WardUNK [1993] 2 SCR 689: [1997] INLR 54.

Arthur Kingori v Secretary of State for the Home Department [1994] Imm AR 539.

Koyazia Kaja v Secretary of State for the Home Department [1995] Imm AR 1.

in re H and orsELRWLRUNK [1996] AC 563: [1996] 2 WLR 8: [1996] 1 All ER 1.

Senathirajah Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97.

Anatoli Borissov v Secretary of State for the Home Department [1996] Imm AR 524.

Sheikh Ikhlaq and anr v Secretary of State for the Home Department [1997] Imm AR 404.

Anthonypillai Robinson v Secretary of State for the Home Department and Immigration Appeal Tribunal [1997] Imm AR 568.

Gashi and Nikshiqui v Secretary of State for the Home Department [1997] INLR 96.

Secretary of State for the Home Department v Adrian Chiver [1997] INLR 232.

R v Immigration Appeal Tribunal ex parte Balendran [1998] Imm AR 162.

Secretary of State for the Home Department v Hassan Hussein Adan [1998] Imm AR 338.

Michael Debrah v Secretary of State for the Home Department [1998] Imm AR 511.

Chinder Singh and ors v Secretary of State for the Home Department [1998] Imm AR 551.

R v Secretary of State for the Home Department ex parte Thayaparan Iyadurai (unreported, QBD, 19 March 1998).

Asuming (unreported) (11530).

Muamba (unreported) (11716).

Kloc and ors (unreported) (CC/59478/97).

Jaworski (unreported) (17152).

Ibrahim (unreported) (17270).

Mojka (unreported) (18265).

Dymiter (unreported) (18467).

Asylum — gypsies in Slovakia — whether discrimination experienced by applicant amounted to persecution — adverse findings of credibility by special adjudicator — whether Tribunal bound by those findings — the standard of proof applicable to past material events — Kaja considered — the meaning of persecution — the distinction between persecution and discrimination.

The appellant was a Slovak gypsy. He had been refused asylum by the Secretary of State. He appealed. His appeal was dismissed by a special adjudicator who, after hearing and seeing the appellant as a witness, did not find him credible and concluded he was an economic migrant. The Tribunal reviewed the appellant's story in the light of the background material before it.

Held:

1. Albeit the Tribunal heard no oral evidence it considered in the circumstances it need not be bound by the special adjudicator's findings on credibility. On a review of the appellant's story against the background material it concluded he was credible.

2. In coming to that conclusion the Tribunal adopted the standard of proof as set out in Kaja in relation to past material events, albeit that approach was challenged by the respondent, whose arguments in that respect it rejected.

3. Discrimination had to be distinguished from persecution: discrimination may become persecution where the state becomes involved or does not provide a sufficiency of protection.

4. On the facts the appellant albeit subject to discrimination had not been persecuted.

Determination

The appellant in this appeal is a citizen of Slovakia, and a member of the Roma community. He appeals to the Tribunal with leave (Mr M W Rapinet, Vice-President) notified on 5 June from the decision of a special adjudicator, Mr Richard Chalkley, who dismissed his appeal against the refusal of the Secretary of State to grant him asylum under paragraph 336 of HC 395. The Secretary of State certified the appeal pursuant to section 5(4)(b) of schedule 2 of the Asylum and Immigration Act 1993 as amended by section 1 of the Asylum and Immigration Act 1996. The special adjudicator found the Secretary of State wrong to have certified the appeal and he ‘dismissed’ the certificate. Accordingly there is a right to seek leave to appeal to the Tribunal, which, as we have said, was granted on 5 June 1998.

The Tribunal sat as a legally constituted Tribunal and considered the submissions over two days on 28 September and 29 September 1998. The Tribunal had held a preliminary hearing on 13 August 1998 and issued a number of directions, especially in relation to skeleton arguments. In compliance with these directions, the appellant submitted a skeleton argument of some 13 pages together with a supplementary submission of a further five pages. The Secretary of State submitted a skeleton argument of 30 pages. We are grateful to both Mr Jorro and Mr Tam for the care they have given to this case.

The UNHCR by letter dated 25 September 1988 submitted written submissions, although it did not attend to provide any oral submissions.

The issues

The issues in this case extend beyond the actual factual basis before us. Adapting, although not following, the list from Mr Tam's skeleton argument they are as follows:

The approach which should be taken by the Immigration Appeal Tribunal when a special adjudicator has made an adverse finding in respect of the credibility of the appellant;

The decision which we take in this case on the adverse findings of credibility by Mr Chalkley; which as will be seen, means that we must consider the issue of Slovak Roma;

The standard of proof to be applied in asylum status determination when making findings relating to the evidence of past events;

The definition of persecution;

Non-state agents of persecution;

The application of these principles to the issue of Roma from Slovak, and in particular, this appellant.

The appellant's case

Before we consider these matters, we set out the appellant's case. The appellant is a Roma from Slovakia who was born in February 1973. He arrived in the United Kingdom on 15 October 1997 and claimed asylum on arrival. Asylum was refused on 26 November 1997, he was refused leave to enter and given removal directions. He then appealed against the refusal of leave to enter and Mr Chalkley dismissed the appeal on 30 April 1998.

He was interviewed in connection with the asylum claim, although as Mr Chalkley states in his determination the record of the interview is undated. When asked what particular event caused him to leave he replied ‘Because the skinheads would not leave us in peace. They harassed us. We could not go down to the town for a walk or take our son to school. We had to hide.’ He said in his interview that he had not personally been beaten, but his next-door neighbour had been. The appellant submitted a further statement prepared by his then solicitors and forwarded to the Secretary of State on 3 November 1997. The appellant's case is outlined in detail in a further statement prepared for the appeal hearing before the special adjudicator. We set this out here:

‘1. My name is Michael Horvath. I am a Gypsy from the county of Michalovce in Eastern Slovakia. I come from a small village called Palin which is close to Michalovce town itself. I am married. My wife's name is Verona Horvathova and we have a son, Mihal, who is now five years old.

2. The village in which we lived was mostly made up of whites but there were a few Gypsy families living on the outskirts. There were two other Gypsy households in our area. The house itself was built by my mother after my father's death. The house had all the necessary amenities such as water, electricity and a telephone. The house is owned by my mother but she has to pay ground rent. At the back of the house is a large garden.

3. Along with myself, my wife and my child, my mother, four brothers, two sisters, a brother-in-law and two disabled children of my sister and brother-in-law lived in the house.

4. My father died when I was twelve. This was in the period of Communism. He was coming back from work one day. He enjoyed a drink and had stopped at a pub. When he left the pub some whites started on him. A Romany family that witnessed him being beaten ran to tell us what was happening. When we ran to find him he was lying on the ground. He seemed to be conscious but didn't recognise us. We lifted him up and called an ambulance. He was taken to the hospital in Michalovce where he died after a week. The doctors reported the death to the police as he had died from the beating. The police didn't even come to our home. They pretended it hadn't happened. My mother is a timid person and was too afraid to pursue the matter with the police. My father had been a building worker when he was alive.

5. I went to primary/secondary school in the village (Palin) up until age 14 or 15. I then started at apprenticeship school in Michalovce where I was learning the skills of a builder. However I didn't finish the course due to one teacher in particular. This teacher was very strict about time-keeping and I was late one day. He took me into his office and beat me badly with a thick ruler on my legs and back then he let me go. I returned to the classroom, took my bag and returned home. I didn't want to tell my mother about this incident. She is unwell and I didn't want to upset...

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