England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Mr Justice Cresswell)

		Royal Courts of Justice Strand London WC2 Thursday, 26th April 2001

Thursday, 26th April 2001

1. LORD JUSTICE BUXTON: This is a renewed application for permission to appeal against an order of Cresswell J in an immigration matter on 13th December 2000. I intend to grant permission. Therefore, in so doing, I will say as little as is necessary to indicate my reasons.
2. The matter was before me on paper and I then determined that permission should be granted in respect of what I would describe as the second limb of the complaint, that is to say that the judge had not adequately dealt with the way in which the Secretary of State had approached the applicant's application for exceptional leave to remain. I did not grant permission on the principal ground that the applicant relied on, that is to say that she had a well-founded fear of persecution for a Convention reason. The reason why I did not grant permission was that it seemed to me that the judge had been right in his finding that there had been no evidence to establish institutionalised discrimination against women in Lithuania and, as it then seemed to me, there was no sufficient evidence that the state of Lithuania had failed, in a way that engaged the refugee convention, to respond adequately to instances of attacks on women by their husbands.
3. In his submissions to me today Mr Southey has returned again to the judgment of the House of Lords in Regina v Immigration Appeal Tribunal ex parte Shah [1999] 2 AC 629, at page 654 G in the speech of Lord Hoffmann. Mr Southey was good enough to say in his oral submissions that he now puts the matter slightly differently from the way in which it was presented in his written skeleton argument. Whether that is so, I have to say, I do rather doubt. I think it has been plain throughout this matter, though it was not appreciated by me at the written stage, that the nub of this complaint is that the adjudicator did not have the benefit of Lord Hoffmann's observations when she dealt with this matter. She therefore did not directly make findings as to whether the State was, in Lord Hoffmann's words, "unable or unwilling" to protect women against attacks by their husbands. If that were the case it would, of course, give rise to familiar issues in immigration law with regard to the protection theory of the State's responsibility. Mr Southey, however, points out that there are significant and relevant findings in the adjudication (at pages 35 and 36) as to the posture of the State of Lithuania, in particular when the adjudicator says:

"I do not consider that the authorities would be able to provide the appellant with adequate protection at this stage, nor have I found that they have done so in the past."

4. It seems to me arguable that on the basis of that finding it could be said that the position of women in Lithuania is such that the State does not protect them against violence that is directed at them because of the status that they hold, either as women or as married women.
5. I am very far from saying that the outcome of this appeal is clear; and Mr Southey will no doubt so advise his client. But I am persuaded on the basis of that finding on the part of the adjudicator, read in the light of the guidance provided by the House of Lords, in particular by Lord Hoffmann, in Shah, that this is a matter that should be further considered by this court. I therefore grant permission to appeal on all the matters that the appellant seeks to bring before this court.
6. I would only add, as matter of management, that Mr Southey may well wish to consider whether, in the light of his submissions this morning and the particular points upon which he now focuses, it would be helpful to the court for him to reconsider the form of his skeleton argument so as to focus clearly on what are now the issues in the case. That, however, is a matter for him.
Order: Application allowed. Legal aid assessment of the Applicant's costs.