The Queen and Another (Claimant(Applicant) Special Adjudicator Defendant(Respondent)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE KEENE |
| Judgment Date | 31 October 2000 |
| Judgment citation (vLex) | [2000] EWHC J1031-7 |
| Docket Number | CO/2609/1999 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 October 2000 |
[2000] EWHC J1031-7
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Keene
CO/2609/1999
MR ANDREW NICOL QC and MISS ELIZABETH DUBICKA (Instructed by Messrs Fisher Meredith, London SW4 6TA) appeared on behalf of the Claimant (Applicant)
MR ANDREW HUNTER (Instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Defendant (Respondent)
This Applicant for judicial review is a citizen of Poland, who arrived in the United Kingdom on 28 September 1996 with his wife and a child and who claimed asylum on arrival. That claim was refused by the Secretary of State, who also gave a certificate under Schedule 2, paragraph 5 of the Asylum & Immigration Appeals Act, 1993 ("the 1993 Act"). There was an appeal against both decisions to a Special Adjudicator, but the Adjudicator upheld the certificate and dismissed the appeal on the substantive asylum claim. The effect of the upholding of the certificate was that the Applicant had no right of appeal on the substantive claim to the Immigration Appeal Tribunal. His only remedy is by way of judicial review, which he has resorted to by way of the present proceedings.
The Applicant and his family are Roma, colloquially known as gypsies. At the material times they lived in a first floor flat in a small town called Slawno in northern Poland. However, the Applicant was often away from home, because he travelled around performing as a musician. At the hearing before the Special Adjudicator, he relied upon a written statement, in which he described various incidents which happened in Slawno. He was shouted at in shops, one of his sons was involved in fights at school, but in particular there were attacks on his home. He spoke of 5 or 6 attacks over a 2 or 3 year period, though under cross examination he said that they could have started 3 or 4 years before he left Poland. He was there at the flat on two occasions when there were attacks. The first time a number of people pushed into the flat when he answered the door. He was hit on the jaw. They smashed glasses and plates and shouted racist remarks, telling the Applicant and his family to get out of the country.
His evidence was that he had reported the incident to the police and made a statement, but he did not think that they had managed to catch any of the people.
He was at the flat on the second occasion. Late at night, 6 or 7 people pushed into the flat. His wife was hit in the chest, and the men shouted the same things as before.
He was not present on the other occasions. His wife and young daughter were there. His wife had told him that late at night she would hear a knock on the door, which she opened lest they knocked it down. She did not tell him much about these attacks, but the people always pushed in and shouted the same threatening things.
The Applicant said that he reported the attacks to the police who took his statement, but nothing was done and the attacks continued. Some of those involved were the same on more than one occasion, others not. He did not know who they were. He did not know their names and had not seen them since. There was no witness to the attacks. Although he did not identify his attackers, he thought that the police should have searched for them.
The last attack was again when he was not at home. It was the same as usual, except that the people involved said that this was the last warning, next time they would harm the Applicant and his family. He described his wife as being terrified. They went and stayed in a church for a few days and then decided to come to the United Kingdom.
In his original interview answers, though not in his statement to the Special Adjudicator, the Applicant said that the attackers mostly came late in the evening because during the day police were patrolling around. He added that in the end the attackers were threatening to burn them down and the police advised them to run away elsewhere.
The Special Adjudicator accepted the Applicant's account of the various acts directed against him and his family. She had two appeals to determine: one against the Secretary of State's certificate and one against the substantive refusal of asylum.
The statutory provisions governing the certificate were added to the 1993 Act by the Asylum and Immigration Act 1996, s.1, which introduced a new paragraph 5 to Schedule 2 of the 1993 Act. The new provision, insofar as relevant for present purposes, reads as follows:
"5. —(1) This paragraph applies to an appeal by a person on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act if the Secretary of State has certified that, in his opinion, the person's claim on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or be required to leave, the United Kingdom is one to which -
(a) sub-paragraph (2), ( 3) or (4) below applies; and
(b) sub-paragraph (5) below does not apply.
(2) This sub-paragraph applies to a claim if the country or territory to which the appellant is to be sent is designated in an order made by the Secretary of State by statutory instrument as a country or territory in which it appears to him that there is in general no serious risk of persecution."
There is no dispute that that sub-paragraph (2) applies to the present case, because Poland is a designated country.
Sub-paragraph (3) applies broadly speaking to cases where the appellant failed to produce a valid passport without reasonable explanation. Sub-paragraph (4) applies to a number of situations, including those where the fear of persecution is manifestly unfounded or the claim is manifestly fraudulent.
It is clear that the structure of paragraph 5 is that one of the conditions in sub-paragraphs (2), ( 3) or (4) have to be met if a certificate is to be issued by the Secretary of State. But even if one of those conditions is met, there remains an excluding provision which, if applicable, will prevent the issue of a certificate. This is to be found in sub-paragraph (5) of paragraph 5. It provides:
"(5) This sub-paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country or territory to which he is to be sent."
By virtue of paragraph 5(7), if the Special Adjudicator upholds the certificate, there is no right of appeal to the Immigration Appeals Tribunal.
The law relating to the substantive asylum claim is essentially to be found in the 1951 Convention Relating to the Status of Refugees, which became part of the United Kingdom's domestic law as a result of the 1993 Act. Under Article 1A(2) of that Convention, to be a refugee a person must, amongst other things, have a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." In addition, he must show that there is insufficient protection against persecution in his own country, so that he is entitled to turn for protection to the international community: see Horvath v Home Secretary [2000] 3 W.L.R. 379, per Lord Hope of Craighead at p.383C. This is the principle of surrogacy. Where the persecution is alleged to be by non-state agents, it is enough to show that the state is either unwilling to provide sufficient protection or unable to do so: see Adan v Secretary of State for Home Dept. [1999] A.C. 293 and Reg v Secretary of State, ex p. Adan, Aitsegur & Subaskaran [1999] 3 WLR 1274. It need only be shown that there is "a reasonable degree of likelihood" of future persecution: Secretary of State v Sivakumaran [1988] Imm. A.R. 147.
The Special Adjudicator in the present case set out the facts and the parties' submissions and then turned to her conclusions and the reasons therefor. On the certificate, she noted that the Secretary of State had designated Poland as one of the countries in which it appeared to him that there was in general no serious risk of persecution and that that case was not challenged by the appellant, Mr Roszkowski. She then turned to consider paragraph 5(5) of Schedule 2 of the 1993 Act, and she said:
"In considering the question of torture I have obtained guidance from the definition in Article 1 of the UN Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment 1984 and also from the Criminal Justice Act 1988, section 134(1). I am satisfied, having considered those definitions and having considered the evidence put forward by the appellant, that there was nothing in his account that amounted to torture and that the decision of the respondent that sub-paragraph 5 did not apply, was correct.
I therefore upheld the Secretary of State's certificate."
She then dealt with the substantive asylum claim, setting out first the legal principles applicable. On persecution by non-state agents, she stated:
"Persecution may be inflicted on an individual by a group of persons within a country who do not constitute the official authorities. However, it has been established that the risk of such treatment by such a group will not be sufficient to amount to a risk of persecution warranting the grant of refugee status under the Convention unless either the authorities knowingly tolerate that treatment or they are unable or unwilling to offer effective protection against the treatment. I have also had regard to the guidance set out in the Handbook on Procedures and Criteria for Determining...
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