IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Thursday 26 July 2001
B e f o r e :
LORD JUSTICE TUCKEY
LORD JUSTICE LAWS
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT|
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
The Respondent did not appear and was not represented
Crown Copyright ©
Thursday 26 July 2001
"72. The Tribunal is satisfied, from examining the objective evidence, that steps are being taken by the state to deal with the complaints made by Roma and that steps are being taken to control skinheads.
73. It is noteworthy that the incident which allegedly occurred in 1994 did not cause the appellant to leave the Czech Republic.
74. It is also noteworthy that the appellant left after the 1998 incident because it had been suggested by a cousin who was already in the United Kingdom claiming asylum.
75. The Tribunal is satisfied, having looked at the objective evidence, that the appellant did not have at the time he left the Czech Republic a well-founded fear of persecution for a Convention reason. It is also quite clear that there has been a marked improvement in relation to the question of sufficiency of protection during the period in which the appellant has been away from the Czech Republic and he would not have a well-founded fear of persecution if he is returned."
"The question for the IAT was then whether the evidence brought him within the Convention. Although both they and the [adjudicator] appear determined to direct themselves in law as if Karanakaran had never been decided, no issue of law turns on this in the present case. Indeed I agree with the IAT that, in the light of the evidence and their findings, there is no issue of law; everything turns on what the IAT has made of the totality of the evidence in relation to how well-founded the fear of persecution now is and (closely related) whether state protection from civilian attack is sufficient."
"There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery. But precisely where the law is drawn beyond that generality is necessarily a matter of the circumstances in each particular case."
". . . on a determination under article 1A(2) of the Convention as to whether a person outside the country of his nationality claiming refugee status owing to a fear of violence from non-state agents had shown, first, that he had a well-founded fear of being persecuted and, if so, that he was unable or owing to that well-founded fear unwilling to avail himself of the protection of that country, the test as to when the ill-treatment complained of amounted to 'persecution' was dependent not only on the severity of the ill-treatment but also upon there being a failure by the state to afford protection against that ill-treatment",
"When determining whether there is sufficient protection against persecution in the person's country of origin it is sufficient, to meet the standard required by the Convention, that there is in that country a system of criminal law which makes violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies."
"Firstly, this is a highly specialized area of laws which many lawyers - indeed, I would suspect most lawyers - rarely encounter in practice. Secondly, there is an independent two-tier appellate structure . . . After the initial decision there is a fresh hearing before a specialist tribunal which is chaired by a lawyer and has an appropriate balance of experience and expertise amongst its members. After that there is an appeal on a point of law to a highly expert and specialized legally qualified body, the Social Security Commissioners. Thirdly, it is essential that the tribunal structure is sufficiently expert to be able to take an independent and robust view, particularly in cases where the government agency has gone wrong. It must be in a position to see through what the relevant sponsoring department is saying when he is arguing the case".
"The point is also relevant for other similar appeal structures, such as those of the Employment Tribunals and Employment Appeal Tribunal, those of the Adjudicators and Immigration Appeal Tribunals, those of the Leasehold Valuation Tribunals and the Lands Tribunal. However, there are significant differences between this system and those which may affect matters",
and, she continued:
"I would therefore confine my views . . . to this particular tribunal structure, while expecting that similar arguments may be appropriate if they arise elsewhere."
(1) Properly reasoned well-structured judgments of the IAT will normally mark the end of the road unless there is some uncertainty about the applicable law.
(2) This court will be reluctant to permit a second appeal if the IAT set out the relevant principles of law correctly and set out the facts clearly before applying the law to the facts.
(3) If the IAT refuses permission on appeal and a single Lord Justice also refuses permission, the Legal Services Commission should be slow to grant a certificate granting an oral hearing, representing a third attempt.
(4) It would be helpful if both the IAT and immigration adjudicators took care in the way they structured their judgments, so that a prospective appellate court or tribunal can see swiftly whether there is an issue or issues which wanted an appeal. The determinations should not be overlong, and it should not be felt to be necessary to cover every single argument or issue, however minor, in a determination. What is important is that the applicant should feel that proper attention has been paid to the main points he wishes to raise, and that an appellate court should be able to understand the reasoning process and should have little difficulty in satisfying itself that the correct principles of law have been applied (if they have).
(5) In all this, I have not forgotten the words of Lord Bridge in Bugdaycay v Secretary of State for the Home Department  AC 514 to the effect that, in cases touching on fundamental rights, courts and tribunals should apply "the most anxious scrutiny".