Upper Tribunal (Immigration and asylum chamber), 2002-04-04, [2002] UKIAT 983 (RD (Sufficiency of protection, Internal flight alternative, Roma))
| Jurisdiction | UK Non-devolved |
| Judge | Mr A R Mackey, Mr R Baines JP, Mr N Kumar JP |
| Status | Reported |
| Date | 04 April 2002 |
| Published date | 18 March 2005 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 18 January 2002 |
| Subject Matter | Sufficiency of protection, Internal flight alternative, Roma |
| Appeal Number | [2002] UKIAT 983 |
Appeal No:CC-16979-2001
RD (Sufficiency of Protection-IFA-Roma) Poland CG [2002] UKIAT 00983
Immigration Appeal Tribunal Date heard: 18/1/2002
Date notified: 4/4/2002
Before:
Mr A R Mackey (Chair)
Mr N Kumar JP
Mr R Baines JP
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
ROBERT DAWGIERT (+3)
Respondent
Representation:
For the appellant:Ms C Cooper, Home Presenting Officer
For the claimant:Mr M O'Donnell of Counsel representing Herwald Seddon Solicitors
1. The Secretary of State appeals, with leave, against a decision of an Adjudicator (Mrs D Taylor). In that determination the Adjudicator allowed an appeal by the claimants against the decision of the Secretary of State who had refused leave to enter, asylum and rights under the European Convention on Human Rights 1950 (ECHR).
The Adjudicator's decision:
2. The determination, which was promulgated 8 October 2001, accepted that the claimants, Polish Roma from the town Kielce, did have a well founded fear of persecution on returning to Poland for reasons of their ethnicity. The Adjudicator also found that the claimants had suffered significant trauma and that it would be unduly harsh to expect them to relocate.
3. The claimants' credibility was accepted. The Adjudicator found that the claimants had reported attacks on themselves and their property to the local police on approximately 20 occasions but there had been no progress. She stated:
"The police, unable or unwilling mattered little to Mr Dawgiert, did not offer him protection. It is clear that there is in Poland a system in place but it was not operated by the police in Kielce."
4. She then went on to consider whether, as she puts it, the claimants should have moved to another area of Poland "before seeking surrogate protection of the international community". In this regard her findings were that the Roma in Poland were a small community and reside in restricted areas and it would be difficult to blend in coming from outside and the community. Also they faced disproportionately high unemployment and had been hit hard by economic changes and restructuring more than ethnic Poles. She referred to a Tribunal decision in Franczak (00TH/02394) where the Tribunal had before it a report from a Professor "Bacton" who believed that internal flight would be difficult because those who flee to another area in Poland would be seen as troublemakers. She noted a comment from the Tribunal in that decision which stated:
"In this case we take into account the severity of the ill treatments suffered by the respondents, the country information, in particular that the Polish government have not been able to control or prevent violence against Roma in some areas, and find that the authorities had been and are still likely to be unwilling to afford protection to these respondents."
5. (Franczak was also an appeal by the Secretary of State against the decision of the Adjudicator. The Tribunal dismissed that appeal on 24 October 2000.)
6. The Adjudicator had also taken into account the House of Lords' decision in Horvath [2000] 3A11 ER 577 and relevant comments made by this Tribunal in Kacaj and Harakel.
The appellant's submissions:
7. In the grounds of appeal submitted by the Secretary of State four items are concentrated on. These are;
a. Failure of the Adjudicator to address properly the reason for refusal of the claimants' case by the Secretary, as outlined in the refusal letter on 7 February 2001, where it was stated;
"In order to bring yourself within the scope of the United Nations Convention, you have to show that these incidents were not simply random actions of individuals but were a sustained pattern or campaign of persecution directed against you which was knowingly tolerated by the authorities, or that the authorities were unable, or unwilling, to offer you effective protection."
It was submitted that the Adjudicator appeared to rely on the contents of a local newspaper, that had been produced which had reached the conclusion that a system, in place to protect the Roma community, "is not operated by the police in Kielce". The objectivity and methodology employed in the research in this article was submitted as an unknown quantity and thus too much reliance had been placed on it by the Adjudicator. This submission is expanded to the claim that no police force can provide total protection and there was no substance in claims that the police were just going through the motions or that it would have been reasonable, "to expect some progress had been made." Ms Cooper submitted that the Adjudicator had been persuaded by these claims but had failed to give explanations why she concluded the police did not offer effective protection.
b. The Adjudicator had failed to provide adequate reasons why she found it unduly harsh for the claimant and his family to relocate within Poland. Beyond this, it is submitted that there has been an apparent failure by the claimant to approach national authorities when not satisfied at the local level.
c. The Adjudicator had relied on the Tribunal decision in Franczak whereas the Secretary would rely on the more recent Polish Roma case of Andrasz (01/TH/02224).
d. It would have been desirable for the Adjudicator to have provided more detailed reasons for allowing the appeal under Article 3 rather than simply stating that it followed from the appeal being allowed on asylum grounds.
8. In addition to the latest CIPU report on Poland Miss Cooper placed before us a copy of a decision of the Court of Appeal in Wierzbicki [2001] EWCA Civ 830 and the decision of the Tribunal in Andrasz (01TH/02224). She submitted that the Wierzbicki decision was of general application and specifically referred us paragraph 22 of the Tribunal decision in Andrasz.
9. Andrasz is a decision where, after considering a failure of police action in Poland in respect of various incidents that happened to Mr Andrasz, (also a Polish Roma), it states:
"22. There was a limit to how far the best police forces can pursue offenders who can not be identified; this is precisely why protection for ordinary people must depend on the general effectiveness of the criminal justice system. In this case, there is nothing to suggest that gypsies in Poland face nearly the same level of public prejudice as in the Czech Republic. So far as they do have problems, there is no reliable material before us to show that the criminal justice system generally (as distinct from police in particular localities, referred to at paragraph 6.59 of the Home Office Country Assessment, above) is either unwilling or unable to address them effectively. In our view the evidence before us does not show there would be any real risk of breach of human rights if this family were returned to Poland, and this appeal too must be allowed."[We note this appeal by the Secretary of State was only on ECHR grounds which had been allowed by the Adjudicator.]
10. Miss Cooper submitted that these conclusions in Andrasz were directly relevant to the case before us. As with Mr Andrasz, in the current case, the claimants had reported various attacks on them and their property to the police and the police were investigating. Beyond this she submitted that each claim needed to be fact dependent and with the failure of the police in Kielce to provide results on their complaints it was reasonable to expect that the claimants to have complained to higher authorities, beyond merely the local police.
11. She submitted, relying on the CIPU report 6.65 to 6.68, that the problems for Roma in Poland were taken seriously by the police and government authorities and that there was a "sufficiency of protection" available in Poland to these claimants. The Secretary of State did not agree that this claimant had a well founded fear of persecution in his home district and that the sufficiency of protection extended to that area as well as the rest of Poland. Therefore the decision of the Adjudicator was an unreasonable one and unsustainable one. She stressed that it was her submission that because there was sufficiency of protection across the whole of Poland the issue of internal flight or internal protection alternatives did not need to be specifically covered because of the general sufficiency of protection offered by the state in Poland.
12. In relation to Franczak she submitted that we should not place too much reliance on this decision as the report of Professor "Bacton" was actually not before the Adjudicator in this claimant's case.
The respondents' submissions:
13. Mr O'Donnell submitted that we needed to be convinced that the Adjudicator's findings were unsustainable and constituted an error of law. He conceded that there was not an adequate coverage of the country information in the decision as might be desired, but that it was sufficient. There was a clear finding that these claimants would suffer persecution on return to their home area in Poland. He submitted the claim by the Secretary...
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