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 AN IMMIGRATION APPEAL TRIBUNAL
(His Honour Judge P M Lakin)

		Royal Courts of Justice Strand London, WC2
		9th May 2003

Friday, 9th May 2003

J U D G M E N T
1. LORD JUSTICE PETER GIBSON: I will ask Keene LJ to give the first judgment.
2. LORD JUSTICE KEENE: This is an appeal against a decision of the Immigration Appeal Tribunal dated 20th May 2002, whereby that tribunal dismissed her appeal against an adjudicator's decision. Permission to appeal to this court was granted "with hesitation" by Buxton LJ on one ground only, which I shall call the Article 8 point, and refused on all other grounds. However, the application for permission to appeal on other grounds is renewed before us.
3. Since that permission to appeal was granted the appellant's legal advisers have given further thought to the soundness or otherwise of the grounds of appeal, including the Article 8 point, and now accept that they cannot succeed.
4. However, they have no instructions from their client to withdraw or abandon the appeal which remains outstanding.
5. We are told that the appellant speaks little English and is evidently in no position to present arguments herself to this court. It is suggested to us that this matter should be adjourned so that further time should be allowed to take instructions. That is not a course of action which commends itself to this court, as we have indicated. This appeal has been adjourned once already, and there has, in my judgment, been adequate time for those acting on behalf of the appellant to take instructions in the situation which has arisen.
6. We have, moreover, the benefit of two skeleton arguments filed earlier on behalf of the appellant, and it seems to me that, in fairness to the appellant, this court should deal with the submissions advanced in those documents so that she knows the reasons for the court's decision. I therefore propose to deal with the matters raised therein.
7. The appellant is a citizen of the Czech Republic and is of Roma ethnic origin. She arrived in the United Kingdom on 22nd August 2001 and claimed asylum. She claimed at interview to fear persecution in the Czech Republic for racial reasons and also because she was in a lesbian relationship. Her partner, B, arrived in the United Kingdom at the same time and also claimed asylum. The Secretary of State refused the appellant's asylum claim and also concluded that her removal would not involve a breach of his obligations under the Human Rights Act 1998.
8. The essential facts in the case are not in dispute, since the adjudicator did not question the appellant's credibility. She and her partner had been living together in Prague for about two years. They had been verbally abused when they went out, and sometimes people spat at them. They had had to change their flat three times because neighbours put garbage in front of their door and drew obscene pictures on it. Having held a job as a cleaner in an office building for about one and a half years, the appellant was dismissed in February or March 2001, because she and her partner had been seen holding hands.
9. There was one specific incidence of violence. On 19th June 2001 the appellant and her partner were attacked in their own flat at approximately 11.00 p.m. Five people were involved: three Czechs and two skinheads. The flat door was kicked down and both the appellant and her partner were beaten and injured. Those details I have taken from the Immigration Appeal Tribunal's decision at paragraph 9(c).
10. According to the appellant at interview, the attackers used their hands and fists. She did not know if they had anything in their hands at the time. She and her partner complained to the police, but, according to her, they just laughed. Two months later the appellant and B left and came to the United Kingdom.
11. The appellant acknowledged before the adjudicator that neither she nor her partner had been able to identify any of the people involved in the attack on 19th June, nor had they sought to complain to any higher authority about the failure of the police to investigate. The adjudicator noted that the objective material before him showed that the Czech authorities acknowledged that Roma were discriminated against but the authorities had established means of complaint against such bodies as the police in order to provide protection and to avoid discrimination. He concluded that the appellant had not established that the Czech authorities tolerated the actions of those who had been involved in the incidents, nor that those authorities were unable or unwilling to offer effective protection. He therefore dismissed the asylum appeal as well as the human rights appeal.
12. The Immigration Appeal Tribunal dismissed the appeal to it. It concluded that the ill-treatment experienced was not sufficiently persistent or serious to amount to persecution. Reliance had also been placed before it on Articles 3, 8 and 14 of the European Convention on Human Rights. The Tribunal regarded the claim under Article 3 as unsustainable, as did Buxton LJ when dealing with this matter on the application for permission to appeal. So far as the claim under Article 8 was concerned, that was dismissed by the IAT on the facts. The Tribunal, basing itself on the objective material about the treatment of Roma in the Czech Republic and the facts of the present case, found no breach of Article 8 insofar as the claim was based on ethnicity. It noted that homosexual conduct between adults was not an offence in the Czech Republic, that there were a number of homosexual organisations in that country and that the CIPU report of October 2001 referred to a survey which showed the Czechs ranking amongst the most tolerant nations towards homosexuality. The Tribunal saw the claim based on Article 14 as adding nothing to the Article 8 claim.
13. As already indicated, the only ground on which permission to appeal to this court has been given was that ground alleging that the removal of the appellant from the United Kingdom would involve a breach of Article 8. It should be emphasised that Buxton LJ's grant even of that limited permission was made before this court's decision in Ullah v The Secretary of State for the Home Department [2002] EWCA Civ 1856. There, a unanimous Court of Appeal, presided over by the Master of the Rolls, concluded that where the claim under the European Convention of Human Rights is based on the treatment to which an alien is likely to be subjected by the receiving state and the treatment is not sufficiently severe as to engage Article 3, the English court is not required to recognise that any other Article of the Convention is or may be engaged: see paragraph 64.
14. The reasoning of the court in that case was in part based on Article 1 of the Convention, which requires the contracting states to secure to everyone "within their jurisdiction" the Convention rights and freedoms, a provision which is sometimes described as preventing the Convention from having extra-territorial effect. In addition, the court analysed at length the relevant Strasbourg and domestic jurisprudence. It drew attention to Soering v United Kingdom [1989] 11 EHRR 439, where the Strasbourg Court rejected any general principle that a state may not surrender an individual unless satisfied that conditions in the country of destination are in full accord with each of the safeguards of the Convention. In Soering, the court made an exception for cases where there is a real risk of a breach of Article 3, an Article which has been described as enshrining one of the most fundamental values of a democratic society: see Chahal v United Kingdom [1996] 23 EHRR 413. But this court in Ullah observed that, unlike most of the Articles in the Convention, Article 3 imposes an absolute prohibition, and that in no case has the Strasbourg court held that the expulsion of an alien engaged any other Article apart from Article 3.
15. Ullah was directly concerned with an alleged breach of Article 9, the right to freedom of thought, conscience and religion. But the Court of Appeal made it clear at paragraph 64 that its decision and its reasoning would relate to other Articles as well, apart from Article 3.
16. Leave to appeal to the House of Lords was granted by the Court of Appeal, but that appeal has not yet been heard. In the meantime, Ullah remains binding on this court.
17. No oral submissions are now advanced on this aspect of the case, for the reasons to which I referred at the outset.
18. It is argued in the appellant's skeleton that there is a sufficient causal link between the expulsion of a person from this country and the treatment meted out in the receiving country for the United Kingdom to be liable for the resulting breach of a Convention right.
19. In my judgment, Ullah is not only binding on us, but it was rightly decided. It clearly applies to cases where the breach of Article 8 is alleged to arise not because the removal of the claimant will itself interfere with his or her private life, for example by separating the claimant from a wife or husband or other family members still in this country, but by reason of the treatment likely to be experienced in the destination country. It does not conflict with one of the cases referred to in the appellant's skeleton, the case of Z (2002) EWCA Civ 952, which did not determine this point.
20. I regard Ullah as rightly decided both for the reasons set out in the court's judgment in that case, and for one additional reason. It is important to remember that Articles like Articles 8 and 9 are not absolute ones like Article 3. In both Article 8 and Article 9 cases, the right is a qualified one. Thus, the second paragraph of Article 8 permits interference with the right to respect for private and family life, home and correspondence where that interference is

"in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others".

In many cases, an issue would arise as to whether the interference can be justified under Article 8(2).

21. The Strasbourg jurisprudence recognises that, in determining whether the means adopted to achieve a legitimate objective are "necessary in a democratic society" and are proportionate, the state in question is to be allowed a margin of appreciation. This is a recognition by the European Court of Human Rights that there are certain limits to its own ability to judge those issues. As the court said in Handyside v United Kingdom [1976] 1 EHRR 737 in a classic passage at paragraph 48:

"By reason of their direct and continuous contact with the vital forces of their countries, state authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the 'necessity' of a restriction or a penalty intended to meet them."

22. If that is so, how can a judge of the English courts claim to be in an appropriate position to arrive at such a judgment about the balance to be struck in a foreign state between an individual right and a legitimate aim of public policy? He is handicapped because he does not know on what basis the foreign state might seek to justify the interference and because he does not have before him the evidence on that issue. In practice his task would be an extremely difficult one. Moreover, it may well be thought to be contrary to the principle of international comity for one state to be purporting to strike such a balance between competing private and public interests for another state. For that reason also therefore, I regard Ullah as rightly decided.
23. On that basis alone, I would dismiss the appeal on the Article 8 ground. However, an issue also arises as to whether as a matter of fact the appellant established that there would be an interference with her rights under Article 8(1), it being submitted on behalf of the Secretary of State that she failed to do so, irrespective of any justification under Article 8(2).
24. It is contended by the appellant that the evidence established her inability to live a life free from fear, threat of actual physical harm and humiliating and degrading treatment by sections of Czech society and discriminatory denial of access to protection by the relevant state authorities. It is argued that a person's private life includes his or her sexual life and that Article 8 protects the right to establish relationships with others: see Bensaid v United Kingdom [2001] 33 EHRR 10. The criminalisation of consensual homosexual acts by adults in private interferes with the right under Article 8. Reliance is placed there on Dudgeon v United Kingdom [1981] 4 EHRR 140 and Modinos v Cyprus 16 EHRR 485.
25. In the skeleton argument submitted on behalf of the Secretary of State, it is submitted that evidence has not established that there would be breach of Article 8(1). The adjudicator found that the legal status of gay and lesbian couples living in the same household is recognised in the Czech Republic. A lesbian relationship is not against the law.
26. For my part, I accept that the right to respect for private life contains both positive and negative aspects. The state must itself refrain from interference with private life, but in addition it must provide for an effective respect for private life. In the present case one is concerned with the latter obligation, since the appellant's case does not assert that the Czech authorities have themselves been guilty of such interference. The adjudicator noted that there are 21 gay and lesbian organisations in the Czech Republic. The CIPU report, referred to by the IAT, emphasised the degree of tolerance generally shown by Czechs towards homosexuality. Clearly on the evidence, a number of Czechs do discriminate on such a basis, and there is the incident involving violence in June 2001. But the normal mechanism for dealing with such an incident would be via the police. Since the appellant was unable to identify any of her assailants, the prospects of a successful investigation were obviously limited. Moreover, it was found that there were means of complaint against the police established by the state to provide protection and avoid discrimination, and yet those were not used by the appellant.
27. In those circumstances, the IAT was entitled to conclude, as it evidently did, that the state did not fail to provide for effective respect for the private life of homosexual female couples, whether or not one of them one was a Roma. I cannot see that the IAT erred in its conclusion that the Article 8(1) rights of the appellant were not breached in the Czech Republic. For that reason also I would dismiss the appeal.
28. As for the renewed application for permission to appeal, this raises issues under Articles 3 and 18 of the ECHR as well as the asylum claim. The factual context I have set out earlier in this judgment.
29. It is argued on behalf of the appellant in the skeleton argument that the IAT was obliged to find a breach of Article 3 here. It is contended that the appellant's experiences amounted to "degrading treatment" within the meaning of that Article. Reliance is placed on the description of such treatment in Ireland v United Kingdom [1978] 2 EHRR 25, as treatment which arouses a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim.
30. Again, I would accept that Article 3 requires the state (the Czech Republic) to take steps to see that the treatment referred to does not occur within its territory. But to amount to a breach of Article 3, which absolutely prohibits torture, inhuman or degrading treatment or punishment, the treatment does have to achieve a certain level of severity. Discrimination of the kind established as occurring on a number of occasions in the present case, in the shape of verbal abuse and the deposit of garbage and even the loss of a job, is unlikely by itself to amount to such treatment, and to that has to be added a single incident of violence. I am not persuaded that the IAT could not properly conclude as they did, namely that this did not amount to a breach of Article 3. Moreover, for reasons already referred to in respect of the Article 8 issue, the evidence did not establish that the Czech state had failed in its duty. Buxton LJ was, in my view, entirely right to refuse permission to appeal on this ground.
31. As for Article 14, no allegation of discrimination by the state in terms of legislation or other direct action is put forward. For the reasons already set out, the acts of discrimination by individuals cannot in the present case be seen as a breach by the Czech Republic of Article 14.
32. That simply leaves the refugee Convention issue, for which permission to appeal is sought. The appellant's case is that this is an instance where there has been persecution by non state agents.
33. The adjudicator did not regard the abusive behaviour of others towards the appellant, plus the one incident of violence, as amounting to persecution. Nor did he regard the Czech authorities as unwilling or unable to provide protection. The IAT did not find it necessary to deal with the latter aspect.
34. It seems to me that the adjudicator's conclusions were properly open to him. It will often be a matter of judgment whether ill-treatment amounts to persecution. It cannot be said that the adjudicator and the IAT were obliged to regard what happened here as being persecution. In any event, the evidence that the state was unwilling or unable to provide protection against persecution was clearly lacking. In the absence of any identification of the attackers of June 2001, the prospect of a successful police investigation was likely to be limited. There was machinery in existence for complaining about police inactivity, but it was not used.
35. In those circumstances, the conclusion that the appellant had not shown a well-founded fear of persecution within the refugee Convention is not properly open to challenge.
36. For my part, therefore, I would refuse the renewed application for permission to appeal as well as dismissing the appeal as to the Article 8 ground.
37. LORD JUSTICE TUCKEY: I agree.
38. LORD JUSTICE PETER GIBSON: I also agree.

Order: Appeal dismissed. Detailed assessment of the appellants costs.