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, 15th March 2001

Thursday, 15th March 2001

1. LORD JUSTICE SCHIEMANN: 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.
2. 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.
3. 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.
4. 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.
5. 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."

6. 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."

7. He is there quoting from the Handbook, and says:

"I find that this is true in this case."

8. 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."

9. 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."

10. 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."

11. 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 proving that it is reasonably likely that his fear of persecution is well founded and in these circumstances the appeal is allowed."

12. A refugee is defined by the Geneva Convention as a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group and/or political opinion is outside the country of his nationality and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country.
13. In the paradigm case the persecutor is the government or its agents. We however are concerned with the case where the persecutors are not the government as such, but intolerant fellow citizens, including some policemen. The government as such is opposed to the actions by the persecutors. In the literature and in the Handbook these persecutors are referred to as "agents of persecution", but the case law now indicates that the problems posed in cases such as these are not to be solved by an exploration of any law of agency. Like others, I prefer the term "non-state actors".
14. It is established law that a person can qualify as a refugee in such circumstances only if there is an insufficiency of protection by the state against the non-state actors. What is sufficient in this context? The leading case in this field is one decided after the tribunal decision in the present case. The reason why the present appeal has taken so long to reach this court is because it was, along with many others, put in the pending pile whilst the House of Lords came to its decision in Horvath v Secretary of State for the Home Department [2000] 3 WLR 379. The facts of the case appear from 2000 Imm AR 209, a decision of the Court of Appeal. Stuart-Smith LJ said at pages 214-215:

"The appellant is 26. He comes from a village called Palin from the county of Mikhalovice, where the Roma community, to which he belongs, are a small minority. On 15th October 1997 he arrived in the United Kingdom with his wife and child and claimed asylum. He stated he feared persecution in Slovakia by skinheads, against whom the Slovak police failed to provide protection for Roma. Among the episodes to which he referred was beating to death of his father - (which did not even lead the police to come to his house: 'They pretended it hadn't are happened') - this was in 1985 under the communist regime; an attack on his brother by skinheads armed with vicious weapons; persistent attacks on his home, leading the appellant and his brothers to dig a hole in the ground in their back garden and regularly take shelter in it at night; the destruction by skinheads of every item in the appellant's home, leaving an empty shell; attacks on all the Roma in the appellant's village ('the police didn't want to get involved'); serious violent attacks on two Roma neighbours; and the murder of two others. He said that if they were returned to Slovakia he was afraid that he would again be persecuted by the skinheads because he was a gypsy. He will not get protection from the police who do not care at all but their problems. His written statement reported that 'skinheads would come to our village and throw bombs into the homes of gypsies'; that 'approximately 3 to 4 times a week neo-Nazis would... hurl abuse outside my windows that all gypsies must die', that the situation 'caused me to fear for my life' in that he came to the United Kingdom because he wanted his child to grow up in a country in which she is not persecuted."

15. Against those facts the House of Lords in Horvath had to consider what was the appropriate legal test in relation to being a refugee. The leading judgment was given by Lord Hope of Craighead and I quote the following passage from it:

"It seems to me that the Convention purpose which is of paramount importance for a solution of the problems raised by the present case is that which is to be found in the principle of surrogacy. The general purpose of the Convention is to enable the person who no longer has the benefit of protection against persecution for a Convention reason in his own country to turn for protection to the international community...

This purpose has a direct bearing on the meaning that is to be given to the word 'persecution' for the purpose of the Convention. As Professor James C Hathaway in The Law of Refugee Status (1991), p 112 has explained, 'persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community.' At p 135, he refers to the protection which the Convention provides as 'surrogate or substitute protection' which is activated only upon the failure of protection by the home state. On this view the failure of state protection is central to the whole system. It also has a direct bearing on the test that is to be applied in order to answer the question whether the protection against persecution which is available in the country of his nationality is sufficiently lacking to enable the person to obtain protection internationally as a refugee. If the principle of surrogacy is applied, the criterion must be whether the alleged lack of protection is such as to indicate that the home state is unable or unwilling to discharge its duty to establish and operate a system for the protection against persecution of its own nationals."

16. He said later on at page 388:

"The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals. As Ward LJ said [2000] INLR 15, 44G, under reference to Professor Hathaway's observation in his book, at p 105, it is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection. I consider that the Immigration Appeal Tribunal in this case applied the right standard when they were considering the evidence."

17. Lord Clyde at page 397G put it this way:

"A question arises, and it has been canvassed in some detail in the oral and written submissions before us, as to the level of protection which is to be expected of the home state... I do not believe that any complete or comprehensive exposition can be devised which would precisely and comprehensively define the relevant level of protection. The use of words like 'sufficiency' or 'effectiveness,' both of which may be seen as relative, does not provide a precise solution. Certainly no one would be entitled to an absolutely guaranteed immunity. That would be beyond any realistic practical expectation... 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 line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case."

18. He then quotes with approval the following passage in Stuart-Smith J's judgment in the Court of Appeal:

"In my judgment of there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders."

19. The application of the test in Horvath to the particular circumstances of a particular country at a particular time will sometimes lead to an answer, one way or the other, which is so manifestly right that it is perverse to come to any other conclusion. However, there will also frequently be cases where, on a given state of the evidence reasonable people can differ as to the conclusion to be drawn from that evidence. In such cases as the present, Parliament has decided that the initial decision-taker is to be the Secretary of State, and there can then be appeals from him to the special adjudicator and from the special adjudicator to the tribunal. The tribunal is an expert tribunal specially set up to deal with these types of cases and can hear appeals both of fact and of law. From that tribunal there is an appeal to this court but only on a point of law.
20. Where the tribunal has made a procedural error or where it has misunderstood the law then this court will usually set aside the tribunal's decision. Where however all that is at issue is whether a country provides the practical standard of protection adverted to in Horvath then this court will only set aside the decision of the tribunal if it is manifestly wrong. The approach of the court in a refugee case is similar to its approach in a case where an applicant for judicial review challenges the Secretary of State's decision to deport him, and asserts a risk that he will be tortured on his return to his home country. That approach is made clear in R v Secretary of State for Home Department ex parte Turgut [2000] INLR 292 where Simon Brown LJ said at 302:

"I therefore conclude that the domestic court's obligation on an irrationality challenge in an Article 3"

- that is of the European Convention on Human Rights case -

"is to subject the Secretary of State's decision to rigorous examination, and this it does by considering the underlying factual material for itself to see whether or not it compels a different conclusion to that arrived at by the Secretary of State. Only if it does will the challenge succeed."

21. Finally before leaving the law, I say this. It is common ground that the tribunal must consider the case as at the time of the tribunal's decision.
22. Mr Riza submitted firstly, that sufficiency of protection, to use the phrase in Horvath, was not a very clear or precise test. Secondly, that the position of Mr Wierzbicki up to 1994 amounted to persecution by the state, or alternatively the state failed to protect Mr Wierzbicki. He said that to have mere theoretical rights, which in practice do not prevent the sort of treatment to which Mr Wierzbicki was subjected is of no use to anyone. He submitted thirdly, that Mr Wierzbicki was a typical gypsy and what had happened to him was typical of what happened to gypsies in Poland at the time. Fourthly, he submitted that the Secretary of State had adduced no evidence to show that things had changed since Mr Wierzbicki left in 1994. Fifthly and centrally, he submitted that the tribunal had applied the wrong test, and he sub-divided that submission as I understood him, into three separate submissions. (1) That the test in Debrah referred to by the tribunal was the wrong test; (2) he said the tribunal was wrong to say, as he claimed it did say, that police officers do not constitute agents of persecution, and (3) he said that the tribunal applied the wrong test (in the passage which I have cited) because it was wrong to assume that if the de jure authority has not broken down there cannot be persecution, and it was wrong to ask whether measures were manifestly inadequate and that was not the test. Sixthly, at times he seemed to suggest that the special adjudicator had more expertise in the field of law and order in Poland than did the tribunal. While in any particular case that may be so, this court must work on the assumption that the appellate tribunal, to which there is an appeal both on fact and on law, has the necessary expertise; and in a matter of this kind, as it seems to me, it would be wrong for the Court of Appeal to say that the judgment of the adjudicator as to the current conditions in Poland is to be preferred to that of the tribunal. The point is emphasised by the fact that they are actually even considering different periods of time because each is considering the situation as at the time of its decision.
23. Mr Riza accepted that he could not say that on the factual material before it the tribunal's decision was perverse. He expressly did not mount a Wednesbury challenge as he told us. We have carefully looked through the underlying material - a number of reports from a number of different sources independent of Mr Wierzbicki - and also the material furnished by Mr Wierzbicki in relation to his own personal experiences. In my judgment Mr Riza was right not to attempt to challenge the decision on this basis. It is clear from that material that at the time of the tribunal's decision they were entitled to come to the view that the situation of gypsies in general in Poland, while not ideal, was not such as to entitle a gypsy to look for surrogate international protection.
24. Turning from gypsies in general to the position of Mr Wierzbicki in particular it seems that, like some other gypsies, he did have some unfortunate experiences in his youth. The facts of the present case, as those in Horvath, indicate an unfortunate situation from the point of view of Mr Wierzbicki. Having looked at the whole of the material before the tribunal it seems to me clear that they were entitled to come to the view that Mr Wierzbicki was, as an individual, not entitled to look to the international community for surrogate protection. He is a gypsy and as such is exposed to certain risks that he will be discriminated against and treated badly. But the IAT were entitled to conclude that the scale of the risk that he faces is not such as to call for international protection.
25. I accept the point made by Mr Riza that sufficiency of protection is not the clearest of tests; that is clearly so as was recognised by their Lordships themselves. But it is the test which represents the law at the moment and, as I say in the spectrum of cases, there is room for respectable differences of view as to whether that sufficiency has been provided. In my judgment Mr Riza cannot complain if the tribunal looks at the whole of the evidence before it, both that relating to Mr Wierzbicki and that relating to gypsies in general, that relating to the law enforcement systems in place in Poland and that relating to the effectiveness of those systems. It looked at that with a view to drawing a conclusion as to what the situation was at the time of the hearing. In my judgment, as in effect I think he conceded, it was entitled to come to the view that there was a sufficiency of protection. But the central challenge was that the tribunal had applied the wrong legal test. In my judgment that also fails.
26. The test in Debrah v Secretary of State for the Home Department [1998] INLR 383 which the tribunal applied, is reflected in the following passage of the decision:

"That there are abuses in Ghana is undeniable. That is true, sadly, to some degree in every country in the world, and it would be a totally prejudiced person who argued that these abuses did not occur in the civilised and democratic Western world, including our own country. Abuses do occur, and to that extent no guarantee can ever be given to anybody, whether a low profile former political 'bag-carrier', or a high profile activist. But whilst our examination of the documents in Ghana in this case lead us to the conclusion that we cannot guarantee that this person will not be persecuted, we are able to say that there is in place in Ghana a sufficiency of protection which will enable him to return safely to Ghana and which will enable him to seek domestic protection in the event of any difficulty he experiences as a result of his former or any new political activity."

27. That judgment was given before Horvath but for my part I do not see any difference in approach between the approach of the tribunal in Debrah and the approach as sanctioned in Horvath. Indeed, as Mr Tam, who addressed us on behalf of the Secretary of State showed us, the test in Debrah was considered expressly by the Court of Appeal in Horvath and was not there disapproved.
28. Turning to the other ways in which it is said that the tribunal applied the wrong legal test, in my judgment, those two assaults are too narrowly focused on words. What the tribunal is doing in the section of its decision which I have read, is seeing whether this is a clear case where the international community must rescue those in Poland and it comes to the conclusion it is not such a clear case. But it then does not say that we need look no further. It then applies the test in Debrah and holds that that test is satisfied. Once one comes to the conclusion that the test in Debrah is not substantially different from the test in Horvath then in my submission the criticism goes.
29. For those reasons I consider that the Immigration Appeal Tribunal in the present case came to a legally defensible decision and I would dismiss this appeal.
30. LORD JUSTICE CHADWICK: I agree that the appeal must be dismissed. The issue for the Immigration Appeal Tribunal was whether the appellant had, at the date of the hearing before that tribunal, a well-founded fear of persecution for a Convention reason. In so far as this was a case in which his fear was of persecution by non-state actors, the tribunal, in addressing that issue, had to consider the level of protection against harassment and ill-treatment which the authorities in Poland would be able and willing to provide if he were to be returned to that country as a result of their decision.
31. The test now to be applied in determining whether the level of protection to be expected in the home state is sufficient to rebut a claim of well-founded fear of persecution – in a case where the persecution feared is persecution by non-state actors – has been identified by the House of Lords in the recent appeal in Horvath v Secretary of State for the Home Department [2000] 3 WLR 397 (see in particular the passages in the speech of Lord Hope of Craighead at 399, and Lord Clyde at 397 to which Schiemann LJ has already referred). But that guidance was not available to the Immigration Appeal Tribunal in the present case: at the date when the tribunal considered the issue in September 1998 Horvath had not been decided either in this court or in the House of Lords. In those circumstances the Immigration Appeal Tribunal took their guidance from an earlier decision of the tribunal itself in Debrah v Secretary of State for the Home Department [1998] Immigration Appeal Reports 511. That case had itself been considered and approved by this Court in Horvath (see the report at [2000] Imm AR 205; particularly at pages 214-215 and at 220-221).
32. In Debrah the test was put in the terms to which Schiemann LJ has referred. It was synthesised by this Court in Horvath in these words:

"... it is indeed the responsibility of the decision-maker to ascertain whether the systems of domestic protection which are in place is sufficient from the perspective of international law."

33. It is said on behalf of the appellant that that is a test which is too imprecise to be of any value. I do not agree. It may well be that the test has been refined and explained by this Court and by the House of Lords in Horvath. But the test, as it has now emerged from that process of refinement and explanation, is, to my mind, essentially the same test as that which the tribunal had sought to apply in Debrah and which the tribunal in the present case applied in reaching its decision.
34. Adopting that test the tribunal was satisfied that if the respondent were to be returned to Poland there would be in place a sufficiency of protection against any racial persecution which might be directed against him and other Roma by some sections of the Polish community. There was evidence upon which the tribunal could reach that view. As Schiemann LJ has pointed out, it is not for this Court to substitute its own view for that of the tribunal. It can only interfere if the tribunal has reached a view which is not supported by the material before it or is plainly perverse. That is not this case.
35. The tribunal reached the view, also, that the individuals from whom persecution was feared, including police officers, were not agents of the state in relation to that persecution. This is a case in which the persecution feared is persecution by non-state actors. There was, as it seems to me, material upon which the tribunal could reach that conclusion also. There is no basis for this Court to interfere.
36. For those reasons, and for the reasons which my Lord has given, I, too, would dismiss this appeal.
37. LADY JUSTICE ARDEN: I agree with my Lords that this appeal should be dismissed. As I see it the tribunal applied the correct test and, for the reasons given by my Lords, there is no material difference between the test in Debrah v Secretary of State for the Home Department [2001] LLR 239 and that in Horvath v Secretary of State for the Home Department [2000] 3 WLR 379, and I agree with what has fallen from Schiemann and Chadwick LJJ on this point.
38. As I see it the decision by the Immigration Appeal Tribunal that there was a sufficiency of protection was indeed one of fact. I see in particular the concluding passage on page 21 of the bundle which says:

"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".

39. I do not consider, as submitted by Mr Riza, that the tribunal merely applied its earlier decision in the case of Markowska v Secretary of State for the Home Department, a decision on 8th November 1996 of the Immigration Appeal Tribunal. He submits that in that case there were factual differences from the present case. However, as I see it after anxious scrutiny, the decision by the Immigration Appeal Tribunal in the present case is not within categories of decision that can be described as ones which no reasonable tribunal properly instructed as to the law could reach. Accordingly, in my judgment, it is not susceptible to review by this court.
(Appeal dismissed with costs; legal aid assessment; permission to appeal to the House of Lords refused).