Wierzbicki v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCHIEMANN,LORD JUSTICE CHADWICK,LADY JUSTICE ARDEN |
| Judgment Date | 15 March 2001 |
| Neutral Citation | [2001] EWCA Civ 830 |
| Docket Number | C/1999/0297 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 March 2001 |
[2001] EWCA Civ 830
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London WC2
Lord Justice Schiemann
Lord Justice Chadwick and
Lady Justice Arden
C/1999/0297
MR A RIZA QC and MR R GHAFFAR (instructed by Rees Wood & Terry, Cardiff CF10 3DG) appeared on behalf of the Appellant
MR R TAM (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent
( )
Thursday, 15th March 2001
Mr Wierzbicki was refused political asylum by the Secretary of State. He appealed to the Special Adjudicator who allowed his appeal. Thereupon the Secretary of State appealed to the Immigration Appeal Tribunal who allowed the Secretary of State's appeal. This led Mr Wierzbicki for his part to appeal to us against the decision of the Immigration Appeal Tribunal.
The facts are largely set out in the adjudication of the special adjudicator. He found the appellant to be truthful, and accepted the evidence of the appellant. It has to be remembered that the appellant left Poland in 1994 when I think he was 18 or thereabouts. He described how he had been bullied at school. He said at home there had been problems as well as their house was often attacked and windows smashed. The police had been called several times but it appeared they could do nothing. They had also sought help in their local courts but no help had been given. He had been beaten once on his way to town. The people involved had included his neighbours. He claimed that an arson attack had taken place on their house because their neighbours wanted to get rid of them because they were gypsies. The windows of their house were broken every two or three days. He claimed that many times the police would come to their house during the night and pour petrol in the house. He said that the police had constantly harassed his family, come into their house and taken them to the police station for questioning but that no charges were however, brought. He said that the windows were smashed and when the police came sometimes in the middle of the night they kicked their front door in.
The appellant claimed that his mother had gone to the court to appeal for help to stop the harassment. They had however received no reply. They had travelled to other parts of Poland but there had been similar problems wherever they were. He said he and his family moved around quite a bit. He said that he had been detained by the police and his father was often charged with trumped-up charges. This had happened three or four times and they were often made to sign documents admitting to things that they had not done. He said that on various occasions he had been attacked but there was no point in reporting these incidents to the police because the police officers were the ones who had been harassing their family at night.
He claimed the police had told him that they wanted the family out of the area, and his neighbours had certainly expressed this opinion many times, and when the family had complained no steps had been taken. Their house had been attacked and finally burnt down in 1993.
The special adjudicator found as follows on page 32:
"On the whole I find that the information provided by the appellant with regard to the treatment of Roma people in Poland, particularly since 1991, shows that there has been an increase in discrimination of them"
that is the way he put it -
"as a people by not only the authorities but also the non Roma population. I find that there is evidence to show that the authorities have been unable and, indeed, in some cases, unwilling to offer protection to the Roma people when complaints have been made to them. The evidence that the appellant has given is therefore borne out by objective reports submitted by both the appellant's and the respondent's representatives at the hearing. I find that the discrimination that the appellant has suffered over the period of time that he has described amounts to persecution in accordance with paragraphs 54 and 55 of the UNHCR Handbook. I find that his treatment at the hands of the authorities and the population amounts to persecution within the Convention."
He says at page 33:
"Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities or if the authorities refuse, or prove unable to offer effective protection."
He is there quoting from the Handbook, and says:
"I find that this is true in this case."
Then at the very end he passes from looking at the past to the future, by saying:
"I am satisfied that, were this appellant to be returned to Poland, there is a reasonable degree of likelihood that his harassment and persecution would continue on the basis of his being a Roma. I therefore allow his appeal."
The Secretary of State appealed to the tribunal. He did so on four grounds. The four grounds were these:
"(a) The Special Adjudicator believed what the appellant told her but has not given her reasons for doing so.
(b) The Special Adjudicator has not considered whether the appellant could safely have moved to another part of Poland (internal flight).
(c) The special adjudicator has taken into consideration determinations of her colleagues, Mr Grant and Professor Counter, but not paid due regard to the Tribunal's determination in the case of Markovska (HX/75505/95) submitted by the Home Office Presenting Officer. In that decision the Tribunal examined all the evidence that was put forward in relation to the treatment of Polish gypsies in Poland. It concluded that they were subject to discrimination in Poland but such discrimination was not tolerated by the authorities. The Tribunal concluded that Polish gypsies as such have not suffered persecution in Poland.
(d) The Secretary of State would also refer to the Tribunal's determination in the case of Guiral (HX/63044/96; 15463). The Tribunal acknowledged that the background material before them recorded some instances of harassment of gypsies and assertions that, in some cases the authorities had failed to act against those who had abused gypsies.
However, none of the reports went so far as to suggest that there was a concerted government supported campaign against the gypsies."
The tribunal rejected the first two grounds of appeal (a) and (b), but the operative part of their decision reads as follows:
"There then remain the issues of objective fear, whether neighbours and police could be said to be agents of persecution and whether there was effective protection afforded to the appellant by the authorities in his own country. We have considered all the documents before us and the authorities to which we have been referred and the appropriate paragraph of the UNHCR Handbook.
There is no suggestion in this case of discrimination against gypsies being tolerated by government it is clear that Polish authorities do not knowingly tolerate such discrimination. It is unfortunate that the special adjudicator did not specifically refer to the appellant's submission based on Markovska and indicate any facts upon which she relied in drawing distinction from Markovska. We have had the advantage of the Tribunal decision in Guiral and Tribunal decisions subsequent to the present case. On the finding on the facts as found truthful by the Special Adjudicator the respondent and his family had suffered harassment and ill-treatment by individuals, by local police officers over a period from the respondent's childhood until at least the year before he left Poland."
I interpose, that was 1993.
"There had also been, for example, trumped up charges: letters by his mother to the courts and to the authorities had elicited no reply. The Tribunal does not, however, consider that the discriminatory and offensive acts were knowingly tolerated by the authorities or that the authorities refused or have proved unable to offer effective protection. The individuals (including police officers) do not in our view constitute agents of persecution. De jure authority cannot be said to have broken down, nor can it be said that the measures taken by the Polish authorities to protect gypsies against persecution have proved to be manifestly inadequate. Adopting Debrah as a test of 'sufficiency of protection' the Tribunal is satisfied that if the respondent were to be returned to Poland there is now there in place a sufficiency of protection against any racial persecution which may be directed against him and other Roma by some sections of the polish community. As highlighted by the President in Jaworski, it is obvious that no guarantee can be given to a returning Roma that he or she will obtain adequate protection from the authorities – that this is true also in the context of the United Kingdom, highlighting as did the President, the issues surrounding the Lawrence case. There is nothing to suggest (nor was it argued) that there is anything to distinguish this respondent from other Polish Roma – for example, being of a more high profile or coming from a specific part of the country where protection would not be available. There is nothing to suggest that the appellant falls into such a particular category.
We have considered the documentation before us and consider that the general situation in Poland at all appropriate stages of this case is not such as to justify the decision of the Special Adjudicator.
The respondent has not discharged the burden of...
To continue reading
Request your trial
-
Svazas v Secretary of State for the Home Department
...to cases such as the present. 30Our attention has been drawn to the recent decision of this court in Wierzbicki v Home Secretary [2001] Imm.A.R.602. The appellant was a Polish gypsy whose case was that his family and their home were being repeatedly attacked not only by hostile neighbours b......
-
Chinder Singh And Others V. A Decision Of The Immigration Appeal Tribunal
...state (Horvath v. Secretary of State for the Home Department [2001] A.C. 489; Wierzbicki v. Secretary of State for the Home Department [2001] Imm. A.R. 602). It has no application where the allegation is of persecution by state bodies such as the police. In the latter situation, where it ar......
-
Petition Of Sukhwat Singh Gill For Judicial Review
...but acting in a rogue capacity, such as was also the case in Krysztof Wierzbickie v The Secretary of State for the Home Department [2001] Imm AR 602. He submitted that the test for whether such activities should be treated as persecution was "whether they are knowingly tolerated by the auth......
-
Upper Tribunal (Immigration and asylum chamber), 2002-04-04, [2002] UKIAT 983 (RD (Sufficiency of protection, Internal flight alternative, Roma))
...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 spec......