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

JurisdictionUK Non-devolved
Judgment Date26 May 2005
Neutral Citation[2005] UKHL 38
CourtHouse of Lords
Date26 May 2005
Secretary of State for the Home Department

ex parte

Bagdanavicius (FC)

and another


[2005] UKHL 38


Lord Nicholls of Birkenhead

My Lords,


I have the advantage of readingin draft the speech of my noble and learned friend Lord Brown of Eaton-under-Heywood. For the reasons he gives, with which I agree, I would dismiss this appeal.


My Lords,


I have had the advantage of reading in draft the speech of my noble and learned friend Lord Brown of Eaton-under-Heywood. For the reasons which he has given, with which Iagree, I too would dismiss this appeal.


My Lords,


I am in full agreement with theopinion of my noble and learned friend, Lord Brown of Eaton-under-Heywood, which I have had the advantage of reading in draft, and for the reasons given by Lord Brown I too would dismiss thisappeal.


My Lords,


For the reasons given in theopinion of my noble and learned friend Lord Brown of Eaton-under-Heywood, with which I agree, I too would dismiss thisappeal.


My Lords,


Article 3 of the European Convention on Human Rights ("the ECHR") enshrines one of the fundamentalvalues of democratic societies and the protection it provides isabsolute. It states that:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."


Ordinarily, of course, article 3 operates to constrain the actions of a contracting state within its ownborders—"domestic cases" as Lord Bingham of Cornhill called them in R (Ullah) v Special Adjudicator [2004] 2 AC 323, 340-341 paras 7 and 9.


It has long been established, however, that article 3 implies in addition an obligation on the part ofthe contracting state not to expel someone from its territory (whetherby extradition, deportation or any other form of removal and forwhatever reasons) where substantial grounds are shown for believing thatupon such expulsion he will face a real risk of being subjected totreatment contrary to article 3 in the receiving country. I shall callthis the Soering principle since it was first decided by the European Court of Human Rights ("ECtHR") in Soering v United Kingdom (1989) 11 EHRR 439, an extradition case. In these cases ("foreign cases" to adopt Lord Bingham's dichotomy in Ullah)the act of expulsion, committed of course in the contracting state's own territory, itself constitutes proscribed ill-treatment.


Ordinarily in these foreigncases, the risk which the individual runs of being subjected followingexpulsion to the proscribed form of treatment emanates fromintentionally inflicted acts on the part of the public authorities inthe receiving country. As, however, was first stated by the ECtHR in HLR v France (1997) 26 EHRR 29, 50, para 40:

"Owing to the absolute character of the right guaranteed, the court does not rule out the possibility that article 3 of the Convention may also apply where the danger emanates from persons orgroups of persons who are not public officials. However, it must beshown that the risk is real and that the authorities of the receivingstate are not able to obviate the risk by providing appropriateprotection."

HLR was a deportation casewhere the source of the alleged risk to the applicant in Colombia wasnot the public authorities but rather drug traffickers allegedlythreatening reprisals. Almost identical language was used by the Courtin Ammani v Sweden Application No 60959/00 ( unreported) 22 October 2002 where the alleged risk of ill-treatment was "not only bythe Algerian authorities but also by the Islamic armed organisation GIA."


Although HLR was put simply ( 26 EHRR 29, 50, para 40) in terms of the court "not rul[ing] out the possibility" of the Soering principle applying in non-state agent cases, the court just three dayslater stated in its well-known judgment in the AIDS case, D v United Kingdom (1997) 24 EHRR 423, 447, at para 49:

"It is true that this principle [the Soering principle] has so far been applied by the court in contexts in which therisk to the individual of being subjected to any of the proscribedforms of treatment emanates from intentionally inflicted acts of thepublic authorities in the receiving country or from those of non-statebodies in that country when the authorities there are unable to affordhim appropriate protection."


Rightly, therefore, the Secretary of State accepts that the Soering principle can indeed apply in cases where the risk arises from the actions of non-state agents. Footnoted to that passage in D was a reference to Ahmed v Austria (1996) 24 EHRR 278, 291, para 44, where the court noted that Somalia (the country to which Austria had proposed expelling the applicant):

"was still in a state of civil war and fighting was going onbetween a number of clans vying with each other for control of the country. There was no indication that the dangers to which theapplicant would have been exposed in 1992 had ceased to exist or thatany public authority would be able to protect him."


Para 40 of HLR and para 49 of D bring me at last to the critical issue arising for determination on thepresent appeal, another case where the risk arising is that of harmthreatened by non-state agents. The issue may be formulated as follows: to avoid expulsion on article 3 grounds must the applicant establishonly that in the receiving country he would be at real risk of sufferingserious harm from non-state agents or must he go further and establishtoo that the receiving country does not provide for those within itsterritory a reasonable level of protection against such harm? Mr Nicol QC for the appellants, a Lithuanian couple with a young child, submitsthat they need establish only a real risk of harm on return. For the Secretary of State, Miss Carss-Frisk QC's principal submission is thatthe appellants must also establish that the receiving country would failto discharge the positive obligation inherent in article 3 to provide areasonable level of protection.


It is, of course, implicit inthe formulation of the issue in this way that a real risk of injury mayremain despite the state's provision of a reasonable level of protectionagainst it and such, indeed, I understand to be the agreed position onthe facts of this very case. The Secretary of State concedes (certainlyfor the purposes of this litigation) that on return to Lithuania theappellants would be at real risk of serious injury by non-state agents;Mr Nicol for his part concedes that Lithuania provides a reasonablelevel of protection against violence of the sort threatened here. That, indeed, is why the stated issue is properly described as critical: itsoutcome is determinative of this appeal.


I should perhaps record atthis point Miss Carss-Frisk's alternative submission. This, as put inpara 96(3) of the Secretary of State's printed case, is that "the sufficiency of state protection is an integral part of the 'real risk' test: the reality of risk is assessed by reference to the sufficiency ofsuch protection. Where a reasonable level of protection is provided, the threshold for the engagement of article 3 will not be met." It rather seems as if this essentially fallback submission was the mainbasis of the Court of Appeal's decision in the Secretary of State's favour—see [2004] 1 WLR 1207, 1230-1231, para 55(7) - (16). For my part, however, I prefer to decide the appeal by reference to the issue earlier formulated. On this basis, of course, the detailed facts of the case are of no particular importance and it is quite sufficient to summarise them as follows.


The appellants are nationals of Lithuania, a husband and wife aged respectively 29 and 31, with a 3-year-old son. The husband is of Roma ethnic origin; the wife is not. Because of this they have been subjected to persistent harassment andviolence in particular at the hands of the wife's brother and various ofhis associates, all stemming from the brother's objection to his sister having married a Roma.


The appellants left Lithuania with their son and arrived in the UK on 7 December 2002. They immediately claimed asylum under the Refugee Convention and in additionasserted that the UK would be in breach of its obligations under article 3 if they were returned to Lithuania.


On 14 December 2002 theappellants' applications for leave to enter the UK were refused by the Secretary of State who also certified their claims under section 115 ofthe Nationality, Immigration and Asylum Act 2002 as "clearly unfounded." On 16 April 2003 Maurice Kay J dismissed the appellants' judicialreview application seeking to quash the Secretary of State's decision tocertify their claims. On 11 November 2003 the Court of Appeal (Lord Woolf CJ, Auld and Arden LJJ) dismissed the appellants' appeal. Asubstantially fuller exposition of the facts of the case is to be foundin the judgments below.


The Soering principle has been repeatedly re-stated in a whole series of subsequent Strasbourg cases: Cruz Varas v Sweden (1991) 14 EHRR 1, 33-34, para 69, Vilvarajah v United Kingdom (1991) 14 EHRR 248, 286-287, para 103, Chahal v United Kingdom (1996) 23 EHRR 413, 453, para 80, Ahmed v Austria, 24 EHRR 278, 290, para 39, HLR v France 26 EHRR 29, 49, para 34, Tomic v United Kingdom Application No 17837/03 ( unreported) 14 October 2003, Ammari v Sweden ( unreported) 22 October 2002 and Nasimi v Sweden Application No 38865/02 ( unreported) 16 March 2004, in the last five of those cases in almost identical terms as follows: "[T]he expulsion of an alien by a contracting state may giverise to an issue under article 3, and hence engage the responsibility ofthat state under the Convention, where substantial grounds have beenshown for believing that the person in question, if expelled, would facea...

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