R (Bagdanavicius) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLady Justice Arden,Lord Justice Auld,and,The Lord Chief Justice
Judgment Date11 November 2003
Neutral Citation[2003] EWCA Civ 1605
Docket NumberCase No: C1/2003/1007(A), C1/2003/1007(B), C3/2003/1007
CourtCourt of Appeal (Civil Division)
Date11 November 2003

[2003] EWCA Civ 1605

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

MR. JUSTICE MAURICE KAY

Before:

The Lord Chief Justice of England and Wales Lord Justice Auld and

Lady Justice Arden

Case No: C1/2003/1007(A), C1/2003/1007(B), C3/2003/1007

Between:
The Queen on the Application of
1) Ruslanas Bagdanavicius
2) Renata Bagdanaviciene
Appellant
and
Secretary of State for the Home Department
Respondent

Mr. A. Nicol QC & Mr. R. Husain (instructed by the Refugee Legal Centre) for the Appellants

Miss M. Carss-Frisk QC & Miss S. Broadfoot (instructed by the Treasury Solicitor) for theRespondent

The Queen on the application of Bagdanavicius v Secretary of State for the Home Department

Summary of conclusions on the main issue —"real risk/sufficiency of state protection

The common threshold of risk for Article 3 ECHR and asylum claims

1

) The threshold of risk is the same in both categories of claim ; the main reason for introducing section 65 to the 1999 Act was not to provide an alternative, lower threshold of risk and/or a higher level of protection against such risk through the medium of human rights claims, but to widen the reach of protection regardless of the motive giving rise to the persecution.

Asylum claims

2

) An asylum seeker who claims to be in fear of persecution is entitled to asylum if he can show a well-founded fear of persecution for a Refugee Convention reason and that there would be insufficiency of state protection to meet it; Horvath.

3

) Fear of persecution is well-founded if there is a "reasonable degree of likelihood" that it will materialise; Sivakumaran.

4

) Sufficiency of state protection, whether from state agents or non-state actors, means a willingness and ability on the part of the receiving state to provide through its legal system a reasonable level of protection from ill-treatment of which the claimant for asylum has a well-founded fear; Osman, Horvath, Dhima.

5

) The effectiveness of the system provided is to be judged normally by its systemic ability to deter and/or to prevent the form of persecution of which there is a risk, not just punishment of it after the event; Horvath; Banomova. McPherson and Kinuthia.

6

) Notwithstanding systemic sufficiency of state protection in the receiving state, a claimant may still have a well-founded fear of persecution if he can show that its authorities know or ought to know of circumstances particular to his case giving rise to his fear, but are unlikely to provide the additional protection his particular circumstances reasonably require;Osman.

Article 3 claims

7

) The same principles apply to claims in removal cases of risk of exposure to Article 3 ill-treatment in the receiving state, and are, in general, unaffected by the approach of the Strasbourg Court in Soering; which, on its facts, was, not only a state-agency case at the highest institutional level, but also an unusual and exceptional case on its facts; Dhima, Krepel and Ullah.

8

) The basis of an article 3 entitlement in a removal case is that the claimant, if sent to the country in question, would be at risk there of Article 3 ill-treatment.

9

) In most, if not all, Article 3 cases in this context the concept of risk has the same or closely similar meaning to that in the Refugee Convention of "a well-founded fear of persecution", save that it is confined to a risk of Article 3 forms of ill-treatment and is not restricted to conduct with any particular motivation or by reference to the conduct of the claimant; Dhima, Krepel; Chahal.

10

) The threshold of risk required to engage Article 3 depends on the circumstances of each case, including the magnitude of the risk, the nature and severity of the ill-treatment risked and whether the risk emanates from a state agency or non-state actor; Horvath.

11

) In most, but not necessarily all, cases of ill-treatment which, but for state protection, would engage Article 3, a risk of such ill-treatment will be more readily established in state-agency cases than in non-state actor cases – there is a spectrum of circumstances giving rise to such risk spanning the two categories, ranging from breach of a duty by the state of a negative duty not to inflict article 3 ill-treatment to a breach of a duty to take positive protective action against such ill-treatment by non-state actors; Svazas.

12

) An assessment of the threshold of risk appropriate in the circumstances to engage Article 3 necessarily involves an assessment of the sufficiency of state protection to meet the threat of which there is a such risk —one cannot be considered without the other whether or not the exercise is regarded as "holistic" or to be conducted in two stages; Dhima, Krepel, Svazas.

13

) Sufficiency of state protection is not a guarantee of protection from Article 3 ill-treatment any more than it is a guarantee of protection from an otherwise well-founded fear of persecution in asylum cases —nor, if and to the extent that there is any difference, is it eradication or removal of risk of exposure to Article 3 ill-treatment; Dhima; McPherson; Krepel.

14

) Where the risk falls to be judged by the sufficiency of state protection, that sufficiency is judged, not according to whether it would eradicate the real risk of the relevant harm, but according to whether it is a reasonable provision in the circumstances; Osman.

15

) Notwithstanding such systemic sufficiency of state protection in the receiving state, a claimant may still be able to establish an Article 3 claim if he can show that the authorities there know or ought to know of particular circumstances likely to expose him to risk of Article 3 ill-treatment; Osman.

16

) The approach is the same whether the receiving country is or is not a party to the ECHR, but, in determining whether it would be contrary to Article 3 to remove a person to that country, our courts should decide the factual issue as to risk as if ECHR standards apply there —and the same applies to the certification process under section 115(1) and/or (2) of the 2002 Act.

Contents

The Main Issues Page 2

The Facts Page 3

1

) 'Real Risk' – sufficiency of state protection Page 10

The law so far Page 10

The submissions Page 20

Conclusion Page 27

Summary of conclusions on real risk/

sufficiency of state protection Page 34

The common threshold of risk Page 34

Asylum claims Page 34

Articles 3 claims Page 35

2

) The Secretary of State's certification of the claim's as

'clearly unfounded' Page 37

3

) Post – decision evidence Page 41

4

) Reasons Page 50

Lord Justice Auld
1

This is an appeal from a decision of Mr. Justice Maurice Kay, given on 16 th April 2003, in which he dismissed the claims of Mr. Ruslanas Bagdanavicius and his wife, Mrs. Renata. Bagdanaviciene, for judicial review of the Secretary of State for the Home Department's certification under section 115(1) and (2) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") of their claims for asylum and under Articles 3 and 8 of the European Convention of Human Rights ["ECHR"] as "clearly unfounded".

The main issue

2

The appeal, which is by permission of the Judge, concerns the meaning and relationship of the concepts of a "well-founded fear of persecution" and "sufficiency of state protection" under the Geneva Convention, as amended by the New York Protocol of 31 st January 1967, ("the Refugee Convention") and a "real risk" of inhuman or degrading treatment under Article 3 ECHR, and their relationship, one with the other. The Refugee Convention provides a right of asylum where there is well-founded fear of persecution for a Convention reason, and Article 3 ECHR provides that "[n]o one shall be subjected to torture or inhuman or degrading treatment or punishment". The Court has also given permission to Mr. and Mrs, Bagdanavicius to appeal the Judge's decision on three other related grounds in respect of which he refused permission.

The facts

3

Mr. and Mrs. Bagdanavicius are citizens of Lithuania, a recent signatory to the ECHR, who arrived in the United Kingdom with their son on 7 th December 2002 and claimed asylum. Mr. Bagdanavicus is of Roma origin and claimed that he and his family were persecuted because of that. However, the central feature of their case was that they had been subjected to persistent harassment and violence at the hands of Mrs. Bagdanavicene's brother, Zilvanis and his associates, who, they claimed, were members of the Lithuanian Mafia, all stemming from the fact that Zilvanis had objected to his sister having married a person of Roma origin.

4

Mr. Bagdanavicius said that Zilvanis had beaten him with a metal stick every time he saw him with Mrs. Bagdanavicius and had threatened to kill their son. He said that he had reported these incidents to the police and that they had done nothing about them, suggesting that that they were ineffective as protection because of corruption, complicity or sheer inertia. He added that the Lithuanian police hated gypsies and that on one occasion traffic police had beaten him. He claimed that he had been turned away from hospitals and health centres when, in seeking medical attention for the injuries caused, he had reported these incidents of violence. He also claimed that he had been unable to find work because of his Roma origin.

5

Mrs. Bagdanavicius made similar allegations of harassment and violence as a result of her husband being a Roma. She claimed that she too had suffered persecution at the hands of Zilvanis and other members of her family and that he had also beaten her.

6

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