England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18th July 2002

1. This is an application for judicial review of the decision of Mr H. Macleman, a Special Adjudicator, dismissing the Claimants’ appeals against the decisions of the Secretary of State refusing to grant them asylum. Permission to apply for judicial review was granted by Newman J.
2. The Claimants are citizens of Poland of Jewish ethnicity. The First Claimant, Mr Jozef Bodzek, has two dependants, his wife, Urszula Bodzek and daughter, also Urszula Bodzek. The Second Claimant, Miss Dominika Bodzek, is also a daughter of the First Claimant.
3. The Claimants arrived in the UK on 25 August 1999 and sought asylum. The reasons for the Secretary of State’s decision refusing their applications are given in his letters dated 22 September 1999 in respect of Mr Bodzek and 4 December 1999 in respect of Miss Bodzek. In her decision dated 8 August 2000 Mrs E S Martins, a Special Adjudicator, expressed herself as satisfied that the Claimants have a genuine and well-founded fear of serious violence or ill-treatment for a Convention reason. However Mrs Martins found that there is sufficiency of protection for the Claimants in Poland and accordingly dismissed their appeals. She said

“57. ... State protection is held to be sufficient provided there is in force within the State a criminal law, which makes violent attacks by 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.

58. On all the objective evidence it is clear that the above is the position in Poland. By the Appellants’ own evidence it is clear that when they reported incidents of violence against them, the police did attend and offer advice and assistance. It is unfortunate that not much could be done, as the perpetrators of the attacks could not be identified.”

4. On 12 December 2000 Moses J granted permission to apply for judicial review of the decision of Mrs Martins. In so doing he observed

“It is unclear why the Special Adjudicator thought there was sufficient protection; for the police merely to ask the victim to identify the assailants is arguably hardly enough; the real question is, arguably whether the police ever made any effort to identify the assailants.”

Thereafter, by consent, the decision of the Special Adjudicator was quashed and the case was remitted to be heard by a different Adjudicator. The hearing took place on 13 July 2001 before Mr Macleman who in a decision re-promulgated on 29 August 2001 dismissed the appeal.

5. The Secretary of State certified that the claims for asylum were ones to which paragraph 5(2) of Schedule 2 to the Asylum and Immigration Appeals Act 1993 (as amended) applied because the Claimants are liable to be sent to a designated country; and further that their claims are ones to which paragraph 5(5) does not apply because they had adduced no evidence relating to torture. Both Special Adjudicators upheld the Secretary of State’s certificates. Before me the Claimants did not pursue their challenge to the certificates.
6. Accordingly the sole issue on the present application is sufficiency of protection in the context of the Refugee Convention. Article 1(A)(2) of the Convention (Cmd. 9171), as amended by the New York Protocol of 31 January 1967 (Cmnd. 3906), provides that the term “refugee” shall apply to any person who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

In Hovarth v Secretary of State for the Home Department (2000) 3 WLR 379 the House of Lords considered the test for determining whether there is sufficient protection against persecution by non-State agents in a person’s country of origin. Lord Hope of Craighead considered the principle of surrogacy. At p 388 he said

“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.”

At p 398 Lord Clyde made clear what is required:

“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.

It seems to me that the formulation presented by Stuart-Smith LJ in the Court of Appeal may well serve as a useful description of what is intended, where he said [2000] INLR 15, 26, para 22:

“In my judgment 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.”

Lord Clyde continued:

“And in relation to the matter of unwillingness he pointed out that inefficiency and incompetence is not the same as unwillingness, that there may be various sound reasons why criminals may not be brought to justice, and that the corruption, sympathy or weakness of some individuals in the system of justice does not mean that the State is unwilling to afford protection. “It will require cogent evidence that the state which is able to afford protection is unwilling to do so, especially in the case of a democracy.” The formulation does not claim to be exhaustive or comprehensive, but it seems to me to give helpful guidance.”

7. In Secretary of State for the Home Department v Klodiana Kacaj (2001) INLR 354, 368 Collins J commented

“We do not read Horvath v Secretary of State for the Home Department ... as deciding that there will be a sufficiency of protection whenever the authorities in the receiving state are doing their best. If this best can be shown to be ineffective, it may be that the applicant will have established that there is an inability to provide the necessary protection. But it is clear that, as Lord Hope of Craighead said (at 388F ..):

“... [I]t is a practical standard, which takes proper account of the duty which the State owes to all its own nationals.”

The fact that the system may break down because of incompetence or venality of individual officers is generally not to be regarded as establishing unwillingness or inability to provide protection. In many cases, perhaps most, the existence of the system will be sufficient to remove the reality of risk.”

8. The critical findings made by Mr Macleman in this regard are contained in paragraph 14 of his decision.

“The appellants are bitter that incidents they reported to the police have not resulted in successful prosecution. On the other hand it is clear from their own account that the police have recorded their complaints. It is impossible to know whether the police devoted the appropriate amount of effort to their enquiries. Hate crimes, without individual connection between victim and perpetrator, are difficult to investigate in any jurisdiction. In my view the lack of an outcome does not point one way or the other. There certainly remains widespread anti-semitism in Poland. The appellants will be identified as Jews if they return to Poland even more clearly than they were before. The increased orthodox observance by the daughters of the family is perfectly genuine, and would continue. While I accept that new problems have emerged since the fall of Communism, I do not agree with the opinion that matters are getting worse for Jews in Poland. The authorities take a determined stand against anti-semitism and in my view the trend is in the opposite direction as Poland emerges as a fully democratic state. No such state is free of discrimination, and law enforcement is imperfect everywhere. While the appellants contend that the police paid only “lip service” to their complaints and did not investigate them, the evidence before me does not objectively justify the view that such is the approach of the police or government authorities in Poland. I cannot find background evidence to justify the proposition that the police in Poland do not act on complaints made by Jews of offences with an anti-semitic character. There is no evidence that the Polish state is unwilling to operate the machinery which exists in respect of such crimes nor to justify a finding that Jews in general, or the appellants’ family in particular, do not enjoy a sufficiency of protection from the state.”

9. Mr Bazini, appearing on behalf of the Claimants, submits that in the light of the evidence in the present case the Adjudicator’s finding that there was not an unwillingness on the part of the state to operate the machinery which exists in relation to these particular Claimants was irrational. Mr Patel for the Respondent submits to the contrary. He says that on the evidence the Adjudicator was entitled to find that there was sufficiency of protection.
10. When considering the evidence before Mr Macleman the following matters, in particular, should be noted:

(1) The Adjudicator proceeded as Mr Bazini proposed and accordingly the prior determination of Mrs Martins was “deemed to be incorporated” in his decision and “should be read as part of (his) determination” (save for the conclusion as to whether there was sufficiency of protection for the Claimants in Poland).

(2) Mrs Martins heard evidence from both Claimants and three witnesses called on behalf of the Claimants, Mrs Urszula Bodzek, Miss Urszula Bodzek and Mr Tim Donkin. In paragraph 55 of her decision the Adjudicator said

“I had the opportunity of hearing and observing the appellants and their witnesses give evidence and I find each of them credible. They all gave their evidence in a straightforward and helpful manner and I had no reason to disbelieve anything they told me.”

(3) There was additional evidence before Mr Macleman in the form of a witness statement of Mrs Urszula Bodzek dated 15 May 2001 “dealing with the inadequacy of police responses to their various complaints from 1990 to 1999” (para 3 of the decision). That statement was made in the light of the observations of Moses J (see para 4 above).

(4) Miss Urszula Bodzek gave evidence before Mr Macleman. The Adjudicator recorded that “Miss Bodzek impressed (him) as an entirely credible witness” (para 5 of the decision).

(5) In paragraphs 6, 12 and 13 of his decision Mr Macleman refers to the documents before him in addition to those before the Mrs Martins which included the updated expert report by Dr A J Prazmowska.

11. Mr Macleman made no express findings in respect of the evidence of Mrs Bodzek contained in her witness statement dated 15 May 2001. However, in the light of the matters referred to in pararaph 10 above it would appear that Mr Macleman accepted Mrs Bodzek as a credible witness and there was no reason to disbelieve anything she said. In that statement Mrs Bodzek dealt, as the Adjudicator noted, with the inadequacy of police responses to the various complaints made by her husband and herself between 1990 and 1999. In view of the findings made and opinions expressed by the Adjudicator in paragraph 14 of his decision (see para 8 above) it is important, in my view, to consider precisely what Mrs Bodzek did say about police responses to their complaints.
12. In her statement Mrs Bodzek gives eight specific instances of the inadequacy of police responses.

“3. .... In the autumn of (1991) the shop was vandalised. All our stock was damaged and it (was) clear that the perpetrators tried to burn the shop down. Fortunately they were not successful. My husband immediately called the police. Their response to me was that it was likely to have been a childish prank and advised us it was not serious, as nothing had been stolen. They also said that they had more important things to investigate.

4. Again in December 1991 our shop was attacked. This time it was graffiti. Each time we painted over it the perpetrators would return and write slogans on the walls and doors. They would also draw swastikas. Although my husband bought strong security lights it still continued. When we reported these incidents to the police their response was that it was probably competitors. Ours was the only shoe shop in the area. We eventually had to close the business down.

5. Although my family and I moved to another village we found that we were still not safe. During December 1993 my husband was attacked in a public house. The police response was that they were simply fights and that on the occasion (when) the attack took place in a pub they said it was his own fault for drinking. Further that the attackers were probably hooligans therefore there was nothing they could do about it.

7. In June 1994 we decided to leave our home and move back to Zywiec. The reason being that our home was constantly being graffitied, we had our windows smashed numerous times and our car tyres were slashed many times. Our neighbours would also throw excrement into our garden. I reported these incidents to the police but they did nothing about them. They did not come to the house to take statements; we had to attend the police station. No further action was taken to find the perpetrators.

8. In July 1994 my husband was seriously attacked which resulted in him receiving 12 stitches to his head. The police again said it was probably hooligans and unless we could identify them there was very little they could do...

11. In May 1999, my husband was abroad, our home was attacked. There was graffiti everywhere and the windows had been broken. I telephoned the police. When they arrived they questioned the family about the incident, took some photographs then left. They did not dust the place for fingerprints. They made no pretence about the fact that they had no intention of investigating the matter further. The police advised us to buy an answering machine so we could screen the calls. This offered us no protection, as it was clear that the perpetrators knew where we lived.

12. One month after the attack I went to the Telecommunications Office to request information that would lead to the identity of the person/s responsible for the threatening telephone calls, however, I was informed that they could not give me that information and that only the police could have access to it. They told me that at that time the police had not made any such request. After this I went to speak to my neighbours who confirmed that the police had never visited them to make enquiries regarding our case.

14. In August 1999 my husband was attacked by a group of skinheads and as a result one of his ribs were broken. The police came to the hospital, took a statement from him but did nothing further.”

13. In paragraph 15 of her statement Mrs Bodzek says

“The attitude of the police in relation to the crimes committed against my family and our property was very dismissive. They made no effort to protect our property or us...”

In paragraphs 6, 9, 10 and 13 of her statement Mrs Bodzek refers to other attacks on her husband and abusive telephone calls which they did not report to the police because they considered it to be pointless in view of the failure by the police to investigate properly any of the previous incidents. Mrs Bodzek concludes her statement by saying

“It is not safe for my family and I to return to Poland as the police do not offer us any protection. We cannot spend the rest of our lives living in fear knowing there is no one to protect us.”

14. Dr Prazmowska notes in her report that

“In spite of the guarantee in the Polish Constitution offering all Polish citizens the right to practise their own faith and undertaking to protect against discrimination, up to date no complaint against any person accused of racial or religious persecution or slander has been upheld in court. In a number of high profile cases, official complaints were made against prominent individuals for making public and well documented attacks on the Jewish faith. None of them have obtained judgments in their favour, and the police and the judiciary have shown very little determination to do anything.”

Dr Prazmowska observes that “in contemporary Poland Jewishness is not defined by any genuine association with the Jewish community and faith, but by the popular perception of who is a Jew”. The fact therefore that in Poland in the past Mr Bodzek and his family had practised Judaism only to a limited extent is not material. Mr Macleman accepts that the Claimants would be identified as Jews if they returned to Poland even more clearly than they were before (see para 8 above).

15. It is not correct, as the Adjudicator suggests, that the Claimants “are bitter that incidents they reported to the police have not resulted in successful prosecution” (para 14 of the decision). Their criticism was that the police had not properly investigated their complaints and had made no real effort to identify and deal with the assailants. In my view it is clear from the evidence of the Claimants and their witnesses that the complaints they have made of offences of an anti-semitic character have not been acted on by the police in Poland. In my judgment the finding by the Adjudicator that in their case there was no evidence that the Polish state was unwilling to operate the machinery which exists in respect of such crimes is Wednesbury unreasonable; so is the conclusion that the Claimants enjoyed a sufficiency of protection from the state. The Adjudicator has failed to deal with and take into account the detailed evidence given by Mrs Bodzek in her witness statement dated 15 May 2001 as to the inadequacy of police responses to the various complaints made by her and her husband over a ten year period.
16. In my judgment the decision of the Adjudicator dismissing the Claimants’ appeals against the decisions of the Secretary of State that they had not established a well-founded fear of persecution and did not qualify for asylum should be quashed. For the reasons I have given this application succeeds.
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THE DEPUTY JUDGE: In this case I give judgment in accordance with the document handed down.

MR SLATTER: My Lord, I am grateful. My Lord, I appear in place of my colleague, Mr Bazini, he sends his apologies. The only order we would seek is the usual order for costs.

THE DEPUTY JUDGE: Mr Patel?

MR PATEL: My Lord, given the judgment that you have just handed down, I cannot resist that.

THE DEPUTY JUDGE: You will have your costs, Mr Slatter.

MR SLATTER: I am grateful.

THE DEPUTY JUDGE: Thank you both very much.