IM (Sufficiency of Protection) Malawi [Asylum and Immigration Tribunal]
| Jurisdiction | England & Wales |
| Judgment Date | 13 February 2007 |
| Date | 13 February 2007 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
C M G Ockelton, Deputy President, and Storey SIJ
Representation
Mr A Leventakis instructed by ACS Solicitors, for the Claimant;
Mr Mark Blundell, Home Office Presenting Officer, for the Secretary of State.
Cases referred to:
Atkinson v Secretary of State for the Home DepartmentUNK[2004] EWCA Civ 846; [2004] Imm AR 596
Horvath v Secretary of State for the Home DepartmentELR[2001] 1 AC 489; [2000] Imm AR 552; [2000] INLR 239
Kacaj v Secretary of State for the Home DepartmentUNK[2002] EWCA Civ 314
Noune v Secretary of State for the Home Department[2001] INLR 526
R v Secretary of State for the Home Department ex parte Bagdanavicius and AnotherUNK[2005] UKHL 38; [2005] 2 AC 668; [2005] Imm AR 430; [2005] INLR 422
R (on the application of Bagdanavicius and Bagdanaviciene) v Secretary of State for the Home DepartmentUNK[2003] EWCA Civ 1605; [2004] Imm AR 36; [2004] INLR 163
Legislation judicially considered:
The Refugee or Person in Need of International Protection (Qualification) Regulations 2006, SI No. 2525, regulation 4(2)
Asylum sufficiency of protection Bagdanavicius Horvath witness support programme not necessary condition for sufficiency of protection Regulation 4(2) of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006
The Claimant, a citizen of Malawi, applied for asylum in the United Kingdom. He had operated a business based in Blantyre, selling general electronic merchandise. In September 2005 he began receiving threatening phone calls and visits from officials of the Malawi Revenue Authority (MRA) alleging discrepancies in his importation paperwork. He made a complaint to the Commissioner of the MRA. As a result, a new joint MRA/Anti-Corruption Bureau (ACB) task force was established and the MRA officials who had threatened him were arrested following a sting operation at his shop. Five days after the arrests the Claimant started receiving anonymous phone calls threatening harm to him and his family. The Claimant reported the matter to the police and the ACB. In December 2005, the Claimant was called to the police station and told that a person had turned himself in to the police claiming that he had been paid by the National Intelligence Bureau to assassinate him. The Claimant was subsequently informed by a junior police officer that as his circumstances were politically connected the police would not provide him with any protection. The Claimant continued to complain to the police that he and his family were in danger but received no additional protection. They left Malawi on 20 December 2005.
Since arrival in the United Kingdom the Claimant had learned that the prosecution against the MRA officials had been dropped. His application for asylum was refused by the Secretary of State for the Home Department on the ground that there was sufficiency of protection. An Immigration Judge dismissed his appeal. An order for reconsideration was made.
The Claimant submitted first, that the Judge had failed to take into account several important aspects of the evidence relating to the willingness and ability of the authorities to afford him protection; secondly, that the Judge had failed to apply relevant principles of case law relating to the protection issue, in particular the principle identified by Auld LJ in the Court of Appeal in R (on the application of Bagdanavicius and Bagdanaviciene) v Secretary of State for the Home DepartmentUNK[2003] EWCA Civ 1605 that the authorities of a country could be expected to provide additional protection where the circumstances reasonably required it; thirdly, that the Judge unduly relied upon the fact that the Claimant had been able to leave Malawi using his own passport.
Held, affirming the Immigration Judge's decision to dismiss the Claimant's appeal against the Secretary of State's decision:
(1) the Judge was entitled to conclude that the evidence before him did not establish insufficiency of protection or that the police were unwilling or unable to protect the Claimant; in this regard, the Claimant's contention that the junior policeman's statement indicated a lack of will or ability by the police to protect him blurred an important distinction between the statement of a junior policeman and the position of the Malawi police as a body (paras 2329);
(2) it was not a necessary condition of sufficiency of protection that a state operate a formal witness support programme; even in states where it could be said that a witness support programme of some kind was integral to effective protection, it would have to be shown that there was a systemic failure in the way that the criminal justice system in that state dealt with a category of persons such as informers or whistleblowers; in this case the evidence did not demonstrate such systemic failure of state protection in relation to informers and whistleblowers in Malawi: R (on the application of Atkinson) v Secretary of State for the Home DepartmentUNK[2004] EWCA Civ 846 applied (paras 3031);
(3) the Judge did not fail to apply the principles set out by Auld LJ in Bagdanavicius; in particular he did not fail to apply the principle that the authorities of a country could be expected to provide additional protection where the circumstances reasonably required it (paras 3233);
(4) the Judge did not err by treating the fact that the Claimant left Malawi unhindered and using his own passport as a relevant factor, albeit of limited weight (para 34);
(5) the failure of the Judge to refer to the House of Lords decision in R (on the application of Bagdanavicius) v Secretary of State for the Home DepartmentUNK[2005] UKHL 38 did not give rise to an error of law as the House of Lords did not expressly disapprove anything said by the Court of Appeal in Bagdanavicius; accordingly, the summary of principles relating to sufficiency of protection set out by Auld LJ in paragraph 55 of his judgement in Bagdanavicius remained current (paras 3639);
(6) in Horvath v Secretary of State for the Home DepartmentELR[2001] 1 AC 489, the House of Lords set out the correct approach to sufficiency of protection as being to consider whether in the relevant state there was a system in place which made violent attacks by persecutors punishable and which displayed a reasonable willingness to enforce that law on the part of law enforcement agencies; post-Horvath case law treated that test as a general test: state protection had to be wide enough to cover the ordinary needs of its citizens for protection; where that general protection was insufficient to prevent persecution in some particular cases or sub-category of cases, such persons could require additional protection; however, as emphasised in Horvath, protection was a practical standard and as such no-one was entitled to an absolutely guaranteed immunity as this would go beyond any realistic expectation (paras 3945);
(7) the wording of regulation 4(2) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 mirrored the test set out in Horvath as interpreted by subsequent case law, dispelling any doubt that the post-Horvath case law reflected the correct test for sufficiency of protection (para 50).
[1] The appellant is national of Malawi. This is a reconsideration of a determination of Immigration Judge Hall notified following a hearing on 5 April 2006 dismissing his appeal against a decision dated 17 February 2006 refusing to grant asylum and a decision of 22 February 2006 to refuse leave to enter.
[2] The basis of the appellant's claim was that he was a computer engineer who ran a business based in Blantyre, Malawi selling general electronic merchandise. When importing goods into Malawi he paid freight charge duties, surtax, excise and other miscellaneous charges. On 19 September 2005 he received threatening phone calls from officials of the Malawi Revenue Authority (MRA) alleging that there were discrepancies in his importation paperwork. The appellant asked the MRA to contact the clearing agencies because he had paid all the duties. However, the threats continued and MRA officials visited his shop saying that unless he made further payments they would make difficulties for him. He was called to the MRA offices for an interview. Afterwards the appellant complained to the Commissioner of the MRA, a man who had recently been appointed by the new President of Malawi. As a result of the appellant's complaints, a new joint MRA/Anti Corruption Bureau (ACB) task force was set up. The corrupt MRA officials who had been threatening the appellant were arrested as a result of a sting operation which took place on 2 November 2005 when he handed money to them when they came to his shop. In November 2005, approximately five days after this operation, the appellant received threatening phone calls. They warned that they were aware of the movement of the appellant and his family and would harm them. The appellant reported the matter to the ACB and the police. He also informed his lawyer.
[3] On 6 December 2005 the appellant was called to the police station. It was explained to him that an individual had turned himself in to the police with the story that he had been paid a large sum of money by the National Intelligence Bureau (NIB) to assassinate him. The individual, known as Jayjay had decided he did not want to go through with it. The appellant was subsequently informed by a junior police officer that his circumstances were politically connected and that the police would not be providing any protection to him. The appellant continued to complain to the police that he and his family were in danger, but still received no protection. Accordingly the appellant and his family decided to flee Malawi, departing on 20 December 2005. Since arrival in the UK he has learned that the prosecution against...
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