QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
MR JUSTICE OUSELEY
Claimant - and - IMMIGRATION APPEAL TRIBUNAL Defendant
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss J Anderson (instructed by Treasury Solicitor for the Interested Party)
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Auld:
The facts and the issues
“… it is clear that the danger which the Appellant says that he would fear on return has nothing to do with politics. It is in fact no more and no less than a traditional Balkan blood feud…. This is the traditional cycle of tit for tat violence which has stained the Balkans for generations without number.”
And, at paragraph 29, he said he was satisfied that, though the Lushaku family might no longer be actively searching for Mr. Dhima, there was a real risk that if they encountered him by chance they would seek to settle old scores by killing him. In the light of that finding, he moved on to consider whether Mr. Dhima could safeguard himself against that risk, either by seeking the protection of the Albanian authorities or by moving to some other part of Albania.
“Owing to the absolute character of the right guaranteed, the Court does not rule out the possibility that Article 3 of the Convention may also apply where the danger emanates from persons or groups of person who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection.”
“Serious problems in the area of policing remain. The police are affected by, and are sometimes a part of, the country’s endemic corruption. ”
“34. … It is well established that corroboration is not required in relation to any asylum claim, and I am prepared to assume that the same applies to human rights appeals. …
35. However, I cannot regard a bare and rather vague assertion of this nature as constituting adequate evidence, even applying the lower standard which is to be adopted in relation to an asylum appeal. I therefore reject the Appellant’s evidence that the Lushaku family enjoy some form of special immunity which would not apply if the Appellant were being threatened by another ordinary member of Albanian society.
36. In light of the limited background material which is before me, and applying the same test when assessing availability of protection from the Albanian Authorities as that which would be applied when assessing ‘sufficiency of protection’ in an asylum appeal involving claimed persecution by non-state agents on the basis of the test laid down by the House of Lords in Horvath v. Secretary of State for the Home Department  Imm AR 552, the Appellant has failed to show that he would not in reality be able to look to the Albanian Authorities, and in particular to the police, for proper protection against the Lushaku family if he were to return to Albania. For that reason alone, I am satisfied that his human rights appeal must be dismissed.”
The applicability of the Horvath test to human rights claims
“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 nationals. ”
“… a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion … and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …”
The meaning of “a well-founded fear” of such persecution is partly subjective and partly objective, and, in its objective sense means “a real and substantial risk”; see R v. SSHD, ex p. Sivakumaran  AC 958, per Lords Templeman and Lord Goff of Chieveley, at 996 and 1000 respectively.
“Are there substantial grounds for believing that the person’s expulsion will expose him to a real risk of suffering torture and/or inhuman or degrading treatment?”
The words “real risk” in that formulation mean much the same as the term “real and substantial risk” in the asylum test, but here the test is not expressly qualified, as in the latter, by any consideration of state protection.
“39. … the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 … in the receiving country …
40. The Court further reiterates that Article 3, which enshrines one of the fundamental values of democratic societies … prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 …, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 … even in the event of a public emergency threatening the life of the nation ….
41. The above principle is equally valid when issues under Article 3 arise in expulsion cases. Accordingly, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Article 33 of the 1951 Convention relating to the Status of Refugees …”
“ …the risk, however severe, and the fear, however well founded, do not entitle him to the status of a refugee. The Convention has a more limited objective, the limits of which are identified in the list of Convention reasons and by the principle of surrogacy.”
That passage was not concerned with the evaluation of risk, with or without state protection, but about the limited categories of motivation for persecution in respect of which the Refugee Convention provides protection.
Conclusions on the applicability of the Horvath test to human rights claims
“40. Owing to the absolute character of the right guaranteed, the Court does not rule out the possibility that Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving states are not able to obviate the risk by providing appropriate protection.”
“43. The Court is aware, too, of the difficulties the Colombian authorities face in containing the violence [referring to the general situation of violence in Colombia]. The applicant has not shown that they are incapable of affording him appropriate protection.”
I can see no inconsistency between that reasoning and the approach of the House of Lords in Horvath.
“The link with the Refugee Convention is obvious. Persecution will normally involve the violation of a person’s human rights and a finding that there is a real risk of persecution would be likely to involve a finding that there is a real risk of a breach of the European Convention on Human Rights. … Since the approach under each Convention is whether the risk of future ill-treatment will amount to a breach of an individual’s human rights, a difference of approach would be surprising.”
“19. We have already identified the desirability of a similar approach under each Convention to the standard of proof. In our view, the same ought to apply to the question whether a real risk of harm has been established. The nature of the harm and the circumstances in which it will arise may produce different results depending on the Convention in issue. Thus, it must amount to persecution and be for a Convention reason if an asylum claim is to succeed. Persecution and breaches of Art. 3 are not necessarily the same, although we doubt whether treatment which did not amount to persecution could none the less cross the Art. 3 threshold. We recognise the possibility that Art. 3 could be violated by actions which did not have a sufficiently systemic character to amount to persecution, although we doubt that this refinement would be likely to be determinative in any but a very small minority of cases. But apart from this and a case where conduct amounting to persecution but not for a Convention reason was established, we find it difficult to envisage a sensible possibility that a breach of art. 3 could be established where an asylum claim failed.”
“21. It may be said that it is no consolation to an applicant to know that if he is killed or tortured, the police will take steps to try to bring his murders or assailants to justice. He is concerned with the risk that he may be killed or tortured and, if the authorities cannot provide effective protection to avoid that risk, there will be a breach of the Convention if he is returned. Practical rather than theoretical protection is needed. We see the force of that contention, but in our view it fails to recognise that the existence of a system should carry with it a willingness to do as much as can reasonably be expected to provide that protection. In this way, the reality of the risk is removed. Since the result will be similar, namely persecution or a violation of a human right, it would be wrong to apply a different approach. We do not read Horvath … 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. …”
“… this interpretation of the Refugee Convention is at odds with the fundamental obligation of non-refoulement. Article 33(1) is explicit in prohibiting return in any manner to a country where the life or freedom of the refugee would be threatened for a Convention reason. This obligation cannot be avoided by a process of interpretation which measures the sufficiency of state protection not against the absence of a real risk of persecution, but against the availability of a system for the protection of the citizen and a reasonable willingness by the state to operate that system. … If the net result of a state’s ‘reasonable willingness’ to operate a system for the protection of the citizen is that it is incapable of preventing a real chance of persecution of a particular individual, refugee status cannot be denied that individual.” [my italics]
“… the Appellant has failed to show that he would not in reality be able to look to the Albanian Authorities, and in particular to the police, for proper protection against Lushaku family if he were to return to Albania. For that reason alone, I am satisfied that his human rights appeal must be dismissed.
Internal flight alternative
Mr Justice Ouseley: