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
		26th July 2002

Friday, 26th July 2002

1. LORD JUSTICE SCHIEMANN: Lord Justice Buxton will give the first judgment.
2. LORD JUSTICE BUXTON: This is a renewed application for permission to appeal to this court from a determination of the Immigration Appeal Tribunal which allowed an appeal brought by the Secretary of State from the determination of an adjudicator. Permission to appeal to this court was originally refused both by the Immigration Appeal Tribunal and on paper by a single member of this court.
3. The applicant, Mr Krepel, is a citizen of the Czech Republic. He himself is not as we understand it a Roma, but he has for ten years lived, as her partner, with a lady who is of the Romany race. He complains that he has encountered significant and distressing, and we would go so far as to say plainly deplorable, discrimination and harassment from other people in the Czech Republic, described in the judgment of the Tribunal as being skinheads. It is right to say immediately that the Adjudicator heard Mr Krepel give evidence and accepted that evidence in every respect.
4. Put shortly, the history was that he was on one occasion attacked by three or four skinheads in public and suffered significant injuries, a broken nose and bruised ribs being amongst them. He attended hospital. He did not report that attack to the police but the doctor at the hospital very properly did so, and the police came to interview Mr Krepel; but there was no follow up to that incident. He also complains that he has suffered a great deal of verbal abuse, much of it of an offensive and sexual nature connected with his partner; and that their children had been abused at school not only by the other children but also, it is said, by the teachers. There was also in his statement to the Immigration authorities (not I think repeated before the Adjudicator) complaints that he had been himself on one or more occasions directly assaulted by the police force. This, as I have said, occurred over a period of some ten years before the year 2000.
5. What was described by the Adjudicator as the most important and significant incident to occur to Mr Krepel arose in September 2000, and it was that that caused him to leave the Czech Republic some 12 months later. On that occasion his partner's brother was beaten up by skinheads in an attack that was certainly described in the medical records as having been for racial reasons. This happened in front of the applicant and his partner. They summoned the police and then an ambulance. An ambulance arrived and took the victim to hospital. The police when they came asked for a description of the attackers but no further steps were taken or at least known to be taken. Unfortunately the brother of Mr Krepel's partner died some four days later from his injuries.
6. Two claims were made in front of the Adjudicator. One was for protection on grounds of asylum; the second was a claim that if Mr Krepel were to be returned to the Czech Republic this country would be in breach of its obligations under Article 3 of the European Convention of Human Rights ("the Convention"). The Adjudicator rejected the claimant's claim in respect of asylum and there was no appeal in respect of that finding to the IAT. Therefore by the same token there is no issue before us in respect of that particular application; though, as I shall in due course have to demonstrate, it is necessary to look at that claim and the grounds upon which the adjudicator dealt with it in order to illuminate the issue that is before this court and was before the Immigration Appeal Tribunal, that is to say the claim that expulsion to the Czech Republic would breach Article 3.
7. I turn to the determination of the Adjudicator. It is necessary to first of all set out two paragraphs where she deals with the asylum claim. At paragraph 21 she said this:

"The problem for this appellant in relation to the asylum appeal is the case law. State protection for the Roma have been extensively reviewed in the courts. The House of Lords in Horvath concluded that the primary duty to provide protection lies with the home state. Its duty is 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. 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 of the home state. Rather it is a practical standard which takes proper account of the duty which the state owed to all its nationals. The Tribunal in Ridaj found that the conclusions of the Court of Appeal in Horvath, which related to the Roma in the Slovak Republic, apply equally to the situation in the Czech Republic, particularly as in the Tribunal's view, the situation there would appear to be better than in Slovakia.

22. The reasons for refusal letter contains a detailed analysis of the steps taken by the Czech government to offer sufficiency of protection towards the Roma. I accept that in the appellant's brother's case that protection was insufficient. The police did not respond as quickly as they should. I also accept that there is a gap between government intent and what actually happens on the ground. Nevertheless, although there were initial failings by the police, and of course I do not know all the circumstances, it is clear that they are now investigating the murder. For these reasons, and because I consider myself bound by higher authority I accept the submission of Mr McDermott that there is a sufficiency of protection in the Czech Republic for the appellant and accordingly his asylum appeal must be dismissed."

8. I would comment that it is, I think, apparent that when the Adjudicator referred in the last sentence to "the higher authority" by which she was bound, she had in mind the authority that she had previously referred to, that is to say the decision of the House of Lords in Horvath.
9. Turning to the human rights appeal the Adjudicator first correctly defined degrading treatment as envisaged in Article 3 and accepted that the applicant was at risk of such treatment. She had previously laid stress, as we have already seen, on the incident with regard to the summoning of the ambulance when there was attack on the partner's brother. She then said this at paragraph 32 in respect of the attack upon Mr Stefan Balog, who was the brother:

"The overwhelming evidence in this case is that the death of Stefan Balog was the result of a racial attack. There is also overwhelming evidence that the police did not attend the scene as quickly as they should have done. Mr Krepel has lost a close family member. He and his family have been subjected to foul and extensive abuse and indeed physical attack. Whilst I do not doubt the good intentions of the Czech government the fact remains that they have been unable in the past to obviate the risk of ill-treatment. Having reviewed the evidence in its entirety I am satisfied that there are substantial grounds for believing that were the appellant to be returned, there would be a real risk that he would face treatment contrary to Article 3."

10. It is I think clear, though it does not appear from the body of the Adjudicator's determination, that her use of the otherwise unusual word "obviate" comes from the determination of the European Court of Human Rights in the case of HLR v France 26 EHRR 29, to which I shall have to return.
11. In his grounds of appeal to the Immigration Appeal Tribunal the Secretary of State took a number of grounds, but those that are relevant to our consideration and were addressed by the Tribunal were grounds (d), (e) and (f). They were as follows:

"(d) not applying the test set out in Horvath [2000] 3WLR 379 for sufficiency of protection in the context of article 3;

(e) attributing excessive weight to one isolated fact, namely that when the appellant's partner's brother was attacked the ambulance arrived before the police;

(f) finding perversely that whilst the Czech authorities could offer sufficient protection against persecution, they could not offer sufficient protection from ill-treatment contrary to article 3."

12. The Immigration Appeal Tribunal dealt with two arguments. One was the question of the distinction that it was alleged the Adjudicator had wrongly made between the test under the Refugee Convention and the test under the Human Rights Convention; and secondly, the ground that we have just seen set out, that in any event the facts were misconstrued by the Adjudicator. Because the Immigration Appeal Tribunal's determination has been subject to properly close inspection by Mr Nicol QC, who has appeared on this application, it is only right to set the relevant parts out in full:

"9. Mr Fountain sought to distinguish the situation under Article 3 from the situation under Refugee Convention. He relied on the specific word 'obviate' used by the Court in HLR v France at paragraph 40. He submitted that the most usual meaning of the phrase 'to obviate a risk' is to remove or counter it, so that the enterprise is rendered safe. He said that the consequence of applying the test would be that where ever there remained some real risk of ill-treatment, the expulsion would be unlawful.

10. It appears to us that the interpretation of the test applied by the court in HLR v France cannot be right, because it makes no sense in the context of that case. The Court recognised that violence was endemic in Colombia, and that the authorities had difficulties in containing it. There must have been a risk that the Applicant would suffer it. In this context the Court, in rejecting the application, cannot have thought that the government would do enough to remove any risk and render the Applicant safe. Besides, Mr Fountain's argument fails to acknowledge that the test 'obviating' the risk was not the only one applied by the Court. In paragraph 43 there is an allusion to another test, which is 'Has the Applicant shown that the State authorities are incapable of affording him appropriate protection?' In HLR's case, the answer was in the negative, despite a recognition of the risk of his being ill-treated on return. 'Obviate' can mean only 'reduce'. We reject Mr Fountain's submission. We hold, in line Kacaj, that there is no perceptible difference between the test of protection under the Refugee Convention and that under Article 3.

11. We move to the Secretary of State's second arguable ground. This is that the adjudicator placed on the ambulance's arrival before the police a weight that that fact could not sustain. It is clear that she regarded the fact as of major, indeed determinative importance. She mentioned it in paragraphs 14, 20, 22, 30 and 32 of her determination; and in paragraph 32 she drew the following conclusion: 'There is overwhelming evidence that the police did not attend the scene as quickly as they should have done'. It appears to us that although the police were summoned shortly before the ambulance, their later arrival shows nothing at all that is to the point in this appeal. There is no evidence of the distances from which each of the services had to travel to the incident; there is no evidence of the various demands on those services at the time in question; and there is no evidence (given the state of affairs at the time the emergency services were called) that an earlier arrival by the police would have served the victim of the attack better than an earlier arrival by the ambulance.

12. Indeed, to treat the fact as an indicator of the general level of protection available to the claimant, as the Adjudicator did, shows a remarkable one-sidedness in her perception. It is not only the case that the police arrived after the ambulance. It is equally true that the ambulance (although summoned slightly later) arrived before the police. Yet the Adjudicator apparently does not regard this fact as demonstrating that, in general, the Appellant will have ready access to medical services for any difficulty he suffers. The truth of the matter is that both services arrived at the scene of the incident and the precise order is of no relevance at all to the question the Adjudicator had to decide. What is of much more relevance is that the police arrived, took statements, and appear to have commenced an investigation. There is no evidence that they did not do all that they might properly be expected to do. Nor, in the rest of the evidence adduced before the Adjudicator, is there evidence that the Czech authorities are not prepared at the present time to protect the claimant and his family from harm.

13. The burden of proof is on the claimant. It appears to us that in this case, as in HLR v France, the claimant has failed to show that the authorities of the Czech Republic are incapable of affording him sufficient protection. On the contrary: his experience shows that when summoned they have both the capacity and the willingness to do so. The Adjudicator should not have allowed the appeal. We therefore allow the Secretary of State's appeal against determination."

13. Before turning to the arguments addressed to us in this case I would take the liberty by way of background of making two points that are on any view trite in this area of the law. The first is that an obligation under Article 3 is an obligation of the State. A breach of Article 3 is therefore only established if the ill-treatment complained of is attributable to the State. In a case such as the present, therefore, where the actual acts have been ones not of State agents but of third parties, the question is whether the State has taken sufficient action to protect the citizen against such acts. Secondly, it is not surprising that the standard or test for State involvement in breach of Article 3 is likely to be the same as the standard or the test for the attribution to the State of persecution under the Refugee Convention: because, there again, the State is only implicated in the acts of third parties that produce a situation that qualifies as persecution under the Refugee Convention if it has failed to take appropriate steps to protect its citizens against those acts.
14. That concurrence of the two tests was recognised in the decision of the Administrative Court in the case of Dhima, decided on 6th February 2002, so far not reported, where Auld LJ said this at paragraph 30:

"Although Article 3 has a wider application than Article 1(A) of the Geneva Convention, and is absolute in its terms and effect, it clearly allows for the home state, by providing suitable protection, to remove the real risk at which it is directed. As [counsel for the Claimant] acknowledged, availability of protection is, therefore, relevant to an Article 3 enquiry."

15. It is therefore relevant to our enquiry, as to whether there had been demonstrated in this case lack of sufficiency of protection from the activities of a third party viewed as an Article 3 matter, to remind ourselves of the test set out in the context of the Refugee Convention by the House of Lords in Horvath [2001] 1 AC at 489. In my respectful view this is most easily obtained from the speech of Lord Clyde at page 510E-H of that report:

"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 guranteed immunity. That would be beyond any realistic practical expectation. Moreover it is relevant to note that in Osman v United Kingdom (1998) 29 EHRR 245 the European Court of Human Rights recognised that account should be taken of the operational responsibilities and the constraints on the provision of police protection and accordingly the obligation to protect must not be so interpreted as to impose an impossible or disproportionate burden upon the authorities. At the least, as is noted in condition (iii) in rule 344 which I have quoted earlier, the person must be able to show that if he is not granted asylum he would be required to go to a country where his life and freedom would be threatened. 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."

16. That issue was reverted to in an Article 3 case in this court, McPherson v Secretary of State for the Home Department, 19th December 2001, reported after the decision of the Immigration Appeal Tribunal in this case. I would simply at this stage refer to an observation of Arden LJ in paragraph 36 of her judgment, the entirety of her judgment having been agreed by the other two members of the court. She said this:

"My second point is that Article 3 requires a state to provide machinery to deter a violation of that article which attains a satisfactory degree of effectiveness. The jurisprudence of the European Court of Human Rights provides support for this conclusion."

17. Her Ladyship then went on to refer in that context to, and quoted from, Osman v United Kingdom [1999] 1 FLR 193: which, as we have seen, was regarded as an important element in the jurisprudence of the European Court of Human Rights relevant to the present issues by Lord Clyde in his speech in Horvath.
18. In our case the Tribunal, in paragraphs 12 and 13 of its determination, did conclude that there was no evidence that the Czech authorities were not at the relevant time prepared to protect the claimant from harm, and also found that the claimant had failed to show that the authorities of the Czech Republic were incapable of affording him sufficient protection. It is of course accepted that on this point the burden of proof lies on the claimant. It might be thought, therefore, that that analysis, clearly tracking as it does the language used by the House of Lords in Horvath, and anticipating the language used by this court in McPherson, would conclude the matter. But in a detailed argument Mr Nicol has argued that that is not so. I hope I do not misrepresent the argument when I say that the elements appear to be these.
19. First, he points out, as Lord Clyde did, that the formulation of Horvath is cast in somewhat general terms. As Arden LJ said at a later point in her judgment in McPherson, she was not concerned in that case with the level of detail of protection that would satisfactory fulfil the general requirement expressed in Horvath. Second, Mr Nicol argues that we now know from the judgments in the Divisional Court in Dhima, which I have already referred to in brief terms, what the correct test should be. The correct test should be and is that any real risk of harm must be removed. That, he says, is shown by the use of the word "remove" in paragraph 13 of Auld LJ's judgment, which I have already read; and also in paragraph 33:

"The broad symmetry of the two tests is also to be found in the extent of state protection that may serve to remove the real risk of harm. The sufficiency test in Horvath falls short of a guarantee of safety from harm, as does the factor of protection in removal of a real risk of harm, as distinct from the possibility of harm, in Article 3 cases. This is illustrated in the reasoning of Lords Hope and Lord Clyde in Horvath, at 500F-H and 510F respectively, that no guarantee of safety can be expected, and in the comment of the Tribunal in Kacaj, at para 16... that in an Article 3 case '[no] guarantees of safety could conceivably be required." Moreover, as the Tribunal in Kacaj noted at paras 20 and 21 of its determination, the House of Lords in Horvath, at 510F-G, drew for its statement of the 'sufficiency of protection' test on the reasoning of the Strasbourg Court's approach to the evaluation of domestic protection in Osman, at para 116, in relation to an alleged infringement of Article 2."

20. That demonstrates, says Mr Nicol, that within the general language used in Horvath there should be understood that the test is really that there must be the removal by the State of a real risk of harm.
21. Third, Mr Nicol contends that that test was considered by the Tribunal in our case and rejected by it. That is said to be demonstrated - I go back to the passage which I have already set out - by the fact that Mr Fountain, then appearing for the applicant before the Adjudicator and relying upon the judgment of the European Court of Human Rights in HLR v France, argued that the test to be applied in human rights terms was that an expulsion was unlawful "wherever there remained some real risk of ill-treatment." In the next paragraph the Tribunal rejected Mr Fountain's submission, partly on the grounds that the word "obviate" could mean only "reduce". That demonstrates, Mr Nicol argued, that whatever the verbal respect was that the IAT paid to the speeches in Horvath, they believed, or at least did not make it sufficiently clear that they did not believe, that all that was required was a reduction and not a removal of any real risk of ill-treatment. In so doing they were deviating from what Auld LJ said in Dhima and were also not following what the European Court had relied on in HLR v France. They were led into error by their misunderstanding of the facts of HLR v France. Of course, as we have seen, they thought that the test posited by Mr Fountain was inconsistent with the factual result in HLR v France. But as Mr Nicol demonstrated the Strasbourg Court succeeded in persuading itself that in fact there had not been demonstrated in that case a real risk of Article 3 intervention against the applicant. Therefore it was not right for the Tribunal in our case to say that the test of obviating or removing a real risk had not in fact been applied by the court in HLR v France. The reason it had not been applied was not that the court did not think it relevant, but because it did not arise on the facts of this case.
22. Thus, this court should be persuaded first of all to establish that the test is as formulated by Auld LJ; and, second, to inquire further as to whether that test was in fact applied in this case.
23. These arguments were, if I may respectfully say so, at first sight cogent ones. I do not shrink for a moment from saying that it is essential that a clear understanding be entertained of the standard and test that has to be applied where any question of a breach of the Convention is involved. But I am not persuaded in the event that the Tribunal fell into the error that Mr Nicol alleges. There are two reasons why I do not take that view. The first is this. The critical investigation of the Tribunal's wording and approach has to be seen in the context of the argument that the Tribunal was in fact addressing. The argument that they were faced with from Mr Fountain was that there was a distinction between on the one hand what was required under Article 3; and on the other hand what was required under the Refugee Convention. We now know that that contention was ill-founded. Mr Nicol agrees that it was ill-founded. We know that it is ill-founded not only from the guidance given by Auld LJ in Dhima and by this court in McPherson, but also from the Tribunal's own jurisprudence in the case of Kacaj, which it relied on for its conclusion at the end of its paragraph 10. In those circumstances one has, in my judgement, to view with caution a claim that the Tribunal was creating a test different from that which properly applies under the European Convention.
24. Secondly, the argument depends far too heavily in my judgement on the verbal term "real risk of ill-treatment". Mr Fountain argued that under HLR v France the expulsion would be unlawful where "there remained some real risk of ill-treatment". The references to "real risk of ill-treatment" are in my judgement a convenient way of describing the underlying condition that has to apply before there is any obligation on the State at all to take preventative measures. That is the significance of the phrase "real risk of ill-treatment." The error in Mr Fountain's analysis of HLR v France was, I accept, not precisely that identified by the IAT, but rather the error identified by Sedley LJ in McPherson, that if the analysis were correct what would be required was a guarantee of safety. As Sedley LJ put it at paragraph 22 of his judgment in McPherson, having quoted what said in HLR v France:

"On the face of it this appears to require the state to obviate risks which fall within Article 3, but this cannot be right. What the state is expected to do is take reasonable measures to make the necessary protection available. It is not, as counsel agree, a guarantor of safety or non-violation. To the extent that a state can be shown to be unable or unwilling to take such measures, the positive obligation of protection will not be met. I respectfully adopt the judgment of Arden LJ as amplifying my reasoning on this question."

25. Mr Fountain's claim with regard to HRL v France was wrong for that reason. The fact that the IAT offered a different reason for doubting it does not establish that that court was seeking to gloss or draw a conclusion from HLR v France different from that which applied in Horvath, or different from what was said by Auld LJ in Dhima. I have already quoted paragraph 33 of Auld LJ's judgment. He accepted that, despite his reference to removal of the real risk of harm, no guarantee of safety could be required. The question was whether, in the terms used by Lord Clyde in Horvath, steps to produce sufficiency of protection had been taken by the State. If the test were truly "removal of a real risk" I see no way in which that could be regarded as anything other than a guarantee of safety in the sense of a guarantee of there being no infringement of the individual's Convention rights: because the phrase "real risk of ill-treatment" is a description of the condition threatening harm to the citizen under Article 3, from which he is entitled to be protected.
26. It is therefore not right to view the IAT in this case as having deviated from or glossed the basic test in Horvath. The Tribunal was satisfied that the Czech authorities met the test under Horvath and HLR v France. In particular, I repeat what was said at the end of paragraph 12:

"Nor, in the rest of the evidence adduced before the Adjudicator, is there evidence that the Czech authorities are not prepared at the present time to protect the claimant and his family from harm."

27. In the context of their determination, that can only be a reference to harm of the sort that they were obliged to protect him from under their obligations under Article 3. They reached that conclusion by accepting the second ground relied on by the Secretary of State, that the Adjudicator had placed too much weight upon, and drew wrong conclusions from, the incident of the arrival of the ambulance. They were entitled to look at the Adjudicator's view on that and the conclusions which she drew from it with a critical eye. This was not a case where the IAT differed from the Adjudicator in a matter of primary fact. All the primary facts were agreed. It was a case where the Tribunal differed in the conclusion or inference that they drew from the primary facts. They were entitled so to do. Having done that, they were in a position to draw the conclusion that they did, basing themselves on a correct direction of the law.
28. That, in my judgement, is sufficient to discharge this application, and I would so do.
29. I would say only one other thing, in the light of the grounds adduced by the Secretary of State which concerns the relationship between the Adjudicator's finding on Article 3 and her finding on the question of persecution. We have seen that applying Horvath, and as far as I can determine applying Horvath properly understood, she considered that the protection available to the applicant sufficed for the Refugee Convention purposes. It seems to me therefore that properly applying the law that she could only have found as she did in relation to Article 3 if she thought that a different test applied in the latter case. As we have seen that is not the law, though in some quarters it was believed to be such, as we see demonstrated in the arguments put to the IAT in this case, and also in arguments put to the Divisional Court in Dhima but rejected by them. I am not clear that I would rest my judgment on that point alone, but it does seem to me that it strongly supports the IAT in the view that they took with regard the Refugee Convention, and also their view that the Adjudicator's conclusions were inconsistent with her previous findings.
30. For those reasons, therefore, despite the arguments of Mr Nichol, and despite what I quite accept is the importance of this case, I do not think that this is a case which should proceed to the Court of Appeal. I would dismiss this application.
31. LORD JUSTICE SCHIEMANN: I also agree. The Adjudicator purported to apply the test in Horvath to the asylum claim. If he correctly understood Horvath then it follows, it is agreed on all sides, that the human rights claim should also be dismissed; if he wrongly understood Horvath then the Tribunal were entitled to approach afresh the human rights claim. The Tribunal itself manifestly applied the test in Horvath correctly understood, relying as it did on its own decision in Kacaj where the first holding indicates that the test to be applied by decision-makers and the appellate authority when dealing with Article 3 claims is the test adopted by the European Court of Human Rights, namely, whether there were substantial grounds for believing that the applicant would face a real risk of ill-treatment if returned.
32. So in my judgment the Tribunal were manifestly applying the right test and there is no real prospect of success in this application.
33. For that reason, as well as the broader considerations urged by my Lord, this application is refused.
34. LORD JUSTICE LONGMORE: I agree.
(Application refused; public funding detailed assessment).