England and Wales Court of Appeal (Civil Division) Decisions

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 Thursday, 1st November 2001

Thursday, 1st November 2001

1. LORD JUSTICE SIMON BROWN: These are three renewed applications by Czech Roma for permission to appeal to this court against the Immigration Appeal Tribunal's determination of 9th March 2001 dismissing each of their appeals, and two linked appeals, against previous individual decisions by special adjudicators dismissing their appeals against the refusal of asylum by the Secretary of State. The IAT's determination, I may note, extends to 61 very closely printed pages equivalent to a substantially longer transcript in the usual form. It followed a two-day hearing at which all the parties were represented by counsel.
2. I refused an application initially on the documents in July in these terms:

"I have found the IAT's enormously thorough and conscientious determination entirely convincing, not least in its resolution of the apparent conflict between earlier Tribunal decisions - the only reason why leave to appeal to the IAT was given in the first place.

I am not at all persuaded by the grounds of (or skeleton argument advanced upon) the applicant's proposed further appeal. They are, I think, effectively refuted in the reasons given by Mr Barnes"

- he was the Vice-President of the Tribunal sitting on these cases -

"on 7th May 2001 when refusing this application on behalf of the IAT. This reasoning is to my mind unaffected by the subsequent decisions of the Court of Appeal in Katrinak and in Harakel, both of which turned on the individual facts of those cases (and in the former case on essentially procedural questions)."

3. The reasons to which I there referred (specifically in the case of Amoz Puvoza) were these:

"The Tribunal notes the assertions of fact contained in paragraphs 1 to 3 but the claim of fact made in paragraph 4 is not accepted."

4. That was a reference to Mr Glen Hodgetts's skeleton argument which in paragraph 4 had included the assertion that the Czech State is basically unable to protect its citizens. The quotation continues:

"What are recorded are unrelated incidents which form no part of any pattern of violence specifically and coherently directed against the applicant. Paragraph 5 sets out the issues to the Tribunal."

5. The principal issue before the Tribunal was whether there is a future underlying risk of persecution if the appellant was returned, and whether the Czech State could offer the appellant practical protection from the risk of violent attack pursuant to the legal framework adumbrated in Horvath, and now further explained by the Court of Appeal in Noune, 6th December 2000.
6. The quotation continues:

"The Tribunal notes that its views as to the earlier claims as to the effect of non-criminal discriminatory actions are not the subject of the grounds of appeal. The underlying assumption of the grounds appears to be that for Roma as a whole in the Czech Republic the state fails to meet its duty of protection of its citizens from the criminal activities of non-state agents. For the reasons explained in the determination the Tribunal found on the evidence that as a matter of fact this failure was not made out. The draftsman of the grounds, however, seeks to elevate the exception to the norm.

In the view of the Tribunal of paragraphs 6 to 15 of the grounds do not raise properly arguable issues of law but amount to a disagreement with the factual findings of the Tribunal. The Tribunal merely analyses the evidence in accordance with the approach set out in paragraphs 138 to 140 of the determination. That approach was not arguably incorrect. What the grounds significantly fail to deal with is the general conclusion of the Tribunal, expressed at paragraph 157 of the determination. Those findings were determinative of this appeal because in the context of them the applicant fails to establish that the protection available to her is not to be regarded as at a proper level.

Insofar as the grounds purport to raise issues of law, the legal principles are established by the House of Lords' decision in Horvath v Secretary of State for the Home Department [2000] Imm AR 552, and the grounds raise no issue which in the view of the Tribunal has any real prospect of success."

- and I just read paragraph 157 which is there referred to, although of course it has to be seen in the context of this enormously thorough determination as a whole:

"157. The issue of whether the harm feared by Roma is part of a co-ordinated plan on the part of the skinheads does not in our view raise any issues relevant to these appeals. That there is some loose organisation of the skinheads we do not doubt but, bearing in mind the relative numbers of skinheads in comparison with the Roma population, the attacks are in general terms random, clearly frequently opportunistic and primarily carried out by strangers to the victim. It might be that an individual claimant who could show that he was being so targeted to the knowledge of the state authorities, and that they had failed in their specific duty to him (compare the circumstances in Osman) would be entitled to invoke the principle of surrogacy because of a failure in the state system specific to that claimant, but it is not, on the facts we have found, an argument which can be successfully advanced in putting forward a general claim to persecution as a class."

7. The applications for leave in the other two cases, I note, were out of time, but Mr Barnes indicated that he would in any event have refused those applications for broadly the same reasons as he gave in Ms Puzova's case.
8. When I refused leave in these cases I directed that any renewed applications should come before a court consisting of two Lords Justices; that was to ensure that before permission to appeal was finally refused two of us were of the same view. We are; and I observe in passing that it was Schiemann LJ who presided in this court and gave the leading judgment in Noune - the case which it is suggested, certainly by Miss Webber, is authority for a contrasting approach to the Horvath principle, but which I for my part do not read in that way.
9. Having spent a great deal of time in advance of today's hearing reading not merely the very long IAT determination and the very full and helpful skeleton arguments (four in all, since fresh counsel are now instructed respectively for Ms Puzova and the other two applicants) but also certain of the other voluminous papers in the court's papers, and having listened this morning to Mr Blake QC and Miss Webber, although we necessarily had to confine their arguments into a comparatively short hearing, I for my part am not persuaded, nor I understand is my Lord, that there will be any realistic prospect of success upon these proposed appeals. That is all I intend to say. To deal with the individual arguments advanced would really be quite impracticable in the circumstances of this particular case within the compass of any reasonably succinct judgment.
10. I would accordingly dismiss these applications.
11. LORD JUSTICE SCHIEMANN: I would also dismiss the applications. I echo what was said by Lord Justice Brook in Josef Koller v Secretary of State for the Home Department [2001] EWCA 1267, where he said:

"In a branch of jurisprudence which is fact-rich, it was very much a matter for this expert tribunal (which must be receiving many applications from unhappy Roma people from central Europe) to apply the principles they have been told to apply by the House of Lords in Horvath."

12. In my judgment this case does not raise any point fit for a further appeal, which will be a third appeal to this court. There does not appear to have been a mistake of law in the judgment of the tribunal. Nor has there been a procedural mistake.
13. In those circumstance, I also, would dismiss all three applications.
(Applications dismissed; costs to be assessed in accordance with Community Legal Service Regulations).