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 IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Tuesday, 22nd May 2001

Tuesday, 22nd May 2001

1. LORD JUSTICE PETER GIBSON: Buxton LJ will give the first judgment.
2. LORD JUSTICE BUXTON: This is an application for permission to appeal from a determination of the Immigration Appeal Tribunal, permission having been refused on paper by Dyson LJ. The application is now renewed to this court.
3. The background of the matter is that this was an asylum case concerning a gentleman who is a native of Poland, though a Roma by racial origin, who applied for asylum in this country. Having been initially refused, his application was accepted by a special adjudicator on appeal by the Secretary of State. That determination was reversed by the Immigration Appeal Tribunal. Of course I accept that this is a case of the greatest importance to Mr Glowacki himself and to his connections, but it is a case which raises, in my judgement, no point of interest or importance outside its immediate importance for him. Therefore I trust I will be forgiven if I make only brief reference to the background facts. These were as follows.
4. Mr Glowacki was born in Poland in 1966, where he used to live in a town near the Czech border of Poland. According to his account that was a town of some 45,000 people but containing only 20 or 30 gypsy families. His contention is that he has been discriminated against as a gypsy throughout his life. He referred in particular to two incidents, one that occurred when there was a gathering at his home with a number of gypsy families to celebrate a family occasion. A substantial number of persons of Polish race were assembled opposite in a restaurant or bar called the Polonia. Racist abuse was offered and what appears to have been a good deal of violence, including the use of two weapons. The police attended on this occasion after the incident had terminated and remained in attendance for a number of days; but when the applicant asked them about further protection they told him that they could only advise that he should hire private resources in order to do that. The second incident that he reported was when he was gratuitously attacked in the street with weapons when he was returning from a visit to a supermarket. He did not refer this to the police because he did not have any witnesses of the incident. More generally, he referred to regular matters of abuse and assault, saying that this was not merely occasioned by his Romani race but by the fact that he was a person of some economic standing and it was that aspect of his life which was particularly objected to by non Romani residents in Poland.
5. As Mr Lewis who has appeared for him this morning rightly pointed out, the fact that he may have been singled out amongst the Romani population in that way does not prevent persecution otherwise falling under the Convention from being persecution for a Convention reason on grounds of race. It is not, and never has been, suggested that Mr Glowacki was directly persecuted by the authorities in Poland. The complaint has been throughout that the authorities were unable or unwilling to control the hooligan or criminal elements that had made his life a misery, and for that reason he could complain of inadequate protection in his country of origin.
6. The Secretary of State has taken the position throughout, first (as I understand to be agreed) that the activities of which Mr Glowacki complains were not directly controlled or sanctioned by the authorities and, second, that within the limits that the Convention jurisprudence recognises it was not correct to say that the authorities were unable or unwilling to offer him protection.
7. There were a number of procedural difficulties in the case until the matter came before the special adjudicator in April 2000, it being noted that that was already nearly four years since Mr Glowacki had claimed asylum in this country. Although by the time the matter came before the special adjudicator this court had given its important decision in respect of non-State agent persecution in the case of Horvath, it does not appear that the adjudicator was specifically taken to that authority. She considered two elements: first of all, the experiences of the applicant that he testified to and which she accepted, and, secondly, the evidence that was put before her of the attitude of the Polish authorities generally.
8. It was conceded by the Secretary of State before the special adjudicator that the intervention and attitude of the Polish authorities was not always, and has not always, been as effective or as prompt as in an ideal world one would expect, but the Secretary of State contended that that type of failing did not in itself indicate that the applicant had been deprived of the necessary level of Convention protection. The special adjudicator found that there had been a pattern of persecution against the applicant and his family and that that persecution had been directed at him because of his ethnicity. She looked at various reports in respect of the position in Poland, and in particular the United States Department of State Report of 25th February 2000, which broadly speaking stated that the Government in Poland, at least at governmental or operative level, displayed what was described as a generally positive and helpful attitude towards human rights investigations. There was however some indication, the special adjudicator found, that it was possible that some parts of the Government bureaucracy are becoming, as she put it, less tolerant towards investigations into human right violations.
9. Against that background, and the possibility (and the special adjudicator put it no higher) that there was what she described as a climate of fear where persons were reluctant to assist the police with investigations, the adjudicator addressed in particular the Polonia restaurant incident and the reaction of the police to that. She said:

"25. ... the Appellant has said that he was told by the police that they could not keep him safe the whole time. He was told that he should pay for private security. This aspect of the Appellant's evidence has not been challenged by the Respondent and I accept it as credible. If the police themselves have advised the Appellant that they cannot keep him safe, it is reasonable to assume that the Appellant should not rely on the authorities to give him protection."

10. It was that attitude that the special adjudicator principally relied on in finding that there was no sufficiency of protection on the part of the Polish authorities on which the appellant could rely, saying this:

"27. ... despite the Constitution stating that `no-one shall be discriminated against in political, social or economic life for any reason whatsoever', violence and societal discrimination against women and ethnic minorities persists. This is despite attempts by the Government to ensure that the provisions in the Constitution are observed."

11. Having therefore found that it was not likely that domestic protection from the authorities would protect the appellant, she granted his appeal.
12. The Secretary of State appealed to the Immigration Appeal Tribunal. In view of some of the observations made on behalf of Mr Glowacki in this appeal, it is perhaps appropriate to say a few words about that jurisdiction. First of all, it is of course a jurisdiction operated by a specialist tribunal. It has to consider, in the light of its experience and knowledge of immigration law, the general position as revealed before the special adjudicator. Second, although it will only be in rare circumstances that the Immigration Appeal Tribunal will feel able to reverse a finding of primary fact on the part of the special adjudicator, and more particularly in a case such as this where the Tribunal did not hear evidence, it is well open to the Immigration Appeal Tribunal to draw its own conclusions both as to secondary fact and as to the general position from primary facts found by the special adjudicator. It is not in my judgement in any way bound by what the special adjudicator determines in those circumstances, though of course the adjudicator's view will carry considerable weight. Third, it is not in my judgement required that either a special adjudicator or the Immigration Appeal Tribunal should reason in pedantic detail to demonstrate why they have reached their broad conclusions. Provided that the grounds they set out are sufficiently explained, it is not necessary, even when the IAT is differing from the special adjudicator, to go item by item through everything that the special adjudicator has determined. With that in mind I turn to the adjudication.
13. In paragraph 10 the IAT accurately determine that the issue in the appeal is whether the special adjudicator was correct in finding that the claimant had discharged the onus of proof that was on him to show that there was a reasonable likelihood that he was unable to avail himself of the protection of the authorities in Poland. They particularly drew attention to what the adjudicator had said about the incident at the Polonia restaurant and the reaction of the police to that.
14. In paragraph 13 they turned to the case of Horvath and said, and in my judgement rightly said, that the House of Lords in that case approved the Court of Appeal's analysis of the law of State protection. In particular reference is made by the IAT to the judgment in this court of Stuart-Smith LJ, where he first of all said that there must be in force in the country in question a criminal law that makes violent attacks by persecutors punishable, that there must be a reasonable willingness of law enforcement agencies to protect, prosecute and punish offenders and that:

"Inefficiency and incompetence was not the same as unwillingness unless it was extreme and widespread. Ward LJ said that State protection could be sufficient even if it was not fully effective because safety could never be granted. It was a matter of fact and degree. What was required was a discernible system of justice."

15. Two criticisms were made before us of that approach of the Immigration Appeal Tribunal. The first is that the Tribunal did not give sufficient weight to what was said in the House of Lords about it being necessary to address the individual's particular circumstances against a background of the Court of Appeal's analysis as a starting point. I do not agree. As I shall shortly demonstrate from the Tribunal's determination, they have that well in mind and did address themselves to Mr Glowacki's position. Second, it is complained that the test as laid down by Stuart Smith LJ places excessive weight on the formalistic existence of a system of law and order without reference to the practical effectiveness of that system on the ground. That is not so. The passage that I have already quoted, as set out in paragraph 13 of the Immigration Appeal Tribunal's decision, makes it quite clear that Stuart Smith LJ started from the need for there to be a system of justice but then went on to the practical effect of that system on the ground. Ward LJ did the same.
16. Having set out that background, the Immigration Appeal Tribunal then said this:

"14. Looking at issue of state protection in this way, it is clear from the evidence that although there continue to be problems for Roma in Poland there is a discernible system of justice and that attempts are made to prosecute those responsible for racist attacks and that Roma as a class are not exempt from the protection of the law."

17. They explained that in paragraph 17 by saying that there was no adequate basis in the evidence to support a finding that there is in general a failure of State protection for Roma in Poland. They demonstrate that the instances relied on by the appellant took place in the town of Nova Sol, near the Czech border, and in relation to the particular incident at the Polonia restaurant emphasised that that one incident does not suffice, even against the background in which it is put, to demonstrate that the authorities were unable or unwilling to protect the claimant. As the Tribunal said:

"18. The Tribunal would not wish to minimise in any way how frightening and indeed, terrifying, the experiences must have been which the claimant and his family were put through but, looking at the evidence in the light of the guidance in the Court of Appeal and House of Lords in Horvath, it falls short of what would be required to show a reasonable degree of likelihood that the Polish authorities are unable or unwilling to protect the claimant. The claimant and his family have been the victims of violence and discrimination in one town in Poland. The claimant has asserted that in his view the same position prevails throughout Poland. The evidence shows that this is not the case. There is a discernable system of justice and law to which the appellant has recourse."

18. They therefore took the view, and in my judgment rightly took the view, that the special adjudicator, who did not directly refer to the case of Horvath, had misdirected herself as to the proper test to be applied and had not properly assessed the objective evidence relating to the situation in Poland. In their view therefore, and applying the test as set out in Horvath, the applicant failed. That was a judgement that, on the objective facts as found by the special adjudicator, the Immigration Appeal Tribunal was well able to make. It correctly applied the law as laid down in Horvath and its determination cannot be criticised.
19. For those reasons therefore I would dismiss this application.
20. LORD JUSTICE PETER GIBSON: I agree.
Order: Application dismissed. Detailed assessment of the applicant's costs.