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 Friday, 6th December 2002

1. LORD JUSTICE PILL: This is an application for permission to appeal against a decision of the Immigration Appeal Tribunal, the President, Sir Andrew Collins, presiding, notified on 19th July 2002. The Tribunal allowed an appeal from a decision of an adjudicator notified on 12th March 2002. The adjudicator dismissed an asylum claim by the applicant, Asta Serviene, who is a citizen of Lithuania. He allowed her claim under the European Convention, finding that there was a real risk that to send her back to Lithuania would expose her to inhuman treatment which breached article 3 of the Convention.
2. The applicant is a national of Lithuania. She first sought to enter the United Kingdom on 21st February 1998 but was refused leave to enter. On 2nd March 1998 she returned to the United Kingdom and claimed asylum as a dependent of her husband. On 2nd September 1999 she claimed asylum in her own right and leave to enter was refused on 30th April 2001. Mr Southey submits that the sole issue upon this application is the sufficiency of protection which exists in Lithuania. There has been a serious crime problem in that country and there have been associations between the Mafia and the police.
3. The applicant's credibility was accepted by the adjudicator and by the tribunal. In her evidence she referred to a very serious incident which occurred on 10th February 1998, in the course of which she was raped. She claimed that the police in Lithuania are hopelessly inefficient. Many of them are themselves in the pay of the Mafia. She is not suggesting that there are no honest policemen in Lithuania, but "the fact remains that even those officers who are not in league with Mafia gangs are grossly underpaid and completely demoralised."
4. In his careful and well argued submissions, Mr Southey relies upon the decision of this court in Svazas v Secretary of State for the Home Department [2002] INLR 197. That, too, was a case involving events in Lithuania. This court allowed an appeal from a decision of the Immigration Appeal Tribunal in an asylum context and remitted the case to them. Mr Southey accepts of course that the Horvath principle applies. That was stated by Simon Brown LJ in Svazas in these terms:

"By 'the Horvath principle' I mean the principle that in the case of persecution by non-State agents no case for surrogate protection by the international community (ie asylum) arises unless the home State fails to afford sufficient protection against it."

5. What was considered in more detail in Svazas was the position of state agents and the approach which should be made in circumstances where the complaint is made of complicity by the police with the criminal element, or at least a failure by the police to take sufficient steps to deal with that criminal element, the alleged defaults being those of the police as state agents. In that case the court took the view that, on the facts, the tribunal's conclusion that the case was not appropriate for asylum was inappropriate. Sedley LJ said at paragraph 36:

"It suggests a less than wholehearted readiness on the part of government to admit the extent of the problem, and a low and declining rate of intervention to remove delinquent police officers.

Whether singling out Communist prisoners for assault (and no doubt other types of prisoner too) is systemic or endemic or sporadic, it necessarily represents an initial failure of protection on the part of the State."

Mr Southey relies upon the reasoning of Sedley LJ in paragraphs 36 and 37 in that factual context. Sedley LJ stated:

"If discriminatory brutality is found to be too widespread to be written off as delinquent activity of the sort that could occur in any system, the paradigm will shift away from the Horvath end of the spectrum towards the less explored class of State agents who take advantage of their power but do not act on behalf of the State: in ordinary parlance, a police force whose members are out of control."

6. This is a renewed application. I refused leave on paper for reasons to which Mr Southey has referred. He submits that the Immigration Appeal Tribunal have not dealt with the State agent aspect of this case and the evidence produced. He submits that there comes a point at which the involvement of police officers in criminal activities is such that the duty of the court is extended. The tribunal must expressly consider the issue. In this case the Immigration Appeal Tribunal did not engage with it. It is impossible for the applicant to tell from their decision what their reasoning was on this subject.
7. It is right to say that the decision itself and the reasoning are brief. However, as I stated when refusing permission on paper, there are references in the decision of the Immigration Appeal Tribunal to the involvement of agents of the State. At paragraph 6 the tribunal stated:

"Furthermore there has been a connection, certainly a suspicion of a connection, between the police and Mafia criminal elements and undoubtedly police corruption has been and to some extent still is, a problem."

Reference is made to a report by Dr. Popovski which was placed before the tribunal by the applicant. At paragraph 7 the tribunal stated:

"Of course if the police themselves are corrupt and are involved it will make it the more difficult to ensure that such offences are not only detected but are dealt with."

It appears to be plain that, while the decision in Svazas was not referred to them, the tribunal had in mind the point with which Svazas was concerned. The tribunal referred in some detail to the report of Dr. Popovski. She herself referred to the US State Department Reports, which state that:

"The Government is making some progress in bringing police corruption under control."

The tribunal referred to the objective evidence before them, though they do not spell it out. They said in paragraph 6:

"The objective evidence about the situation in Lithuania makes it clear that there is still, and has since Lithuania achieved its independence from the Soviet Union, been a real problem in relation to organised crime."

And in paragraph 7:

"There is on all the evidence before us quite clearly an effort being made by the authorities in Lithuania to deal with the problem of organised crime. There is therefore a willingness to provide the necessary protection. It may be said that that willingness does not always exist at the lower level with local police. It is not entirely clear at what level the respondent and her husband made their complaints, but if they were getting nowhere in their local police station or with the lower ranks then surely they should have gone higher."

It is clear to me that, brief though the reference is to the evidence before them as to the situation, and brief though their reasoning may be, the Tribunal had in mind the point on which Mr Southey relies. Moreover, they do state their conclusion in clear terms and in relation to the case of Horvath:

"But in our judgment on the material before us it is quite impossible to say that in Lithuania as a whole there is such a breakdown of effective protection against organised crime that anyone who is affected by it cannot be returned to Lithuania."

There is a reference to the need to look at the facts of the individual case. It is not arguable that, in reaching that conclusion, the tribunal failed to have in mind the fact that it is not only the criminal element which needs to be considered but the State agents, the police themselves and their conduct, and whether it is properly regulated and controlled. Within the overall principle in Horvath that it is not possible to guarantee protection, Simon Brown LJ put it in this way in Svazas at paragraph 53:

"The ultimate question in all cases is whether or not the asylum seeker can establish the need for surrogate protection by the international community for want of sufficient protection in his home State."

That principle appears to me to have been applied by the tribunal in this case in the Convention context. I do not find it realistic to submit that, in reaching their overall conclusion, they did not have regard to all the evidence before them, or that they did not have regard to their need to consider the position of the police themselves when reaching their conclusion. For these reasons I would refuse permission to appeal.

8. LORD JUSTICE MUMMERY: I agree.
Order: Application refused; assessment of costs.