Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Struk, Re A Petition for Judicial Review [2005] ScotCS CSOH_30 (18 February 2005)
URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_30.html
Cite as: [2005] CSOH 30, [2005] ScotCS CSOH_30

[New search] [Help]

Struk, Re A Petition for Judicial Review [2005] ScotCS CSOH_30 (18 February 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 30

P1226/02

OPINION OF LORD WHEATLEY

in the Petition of

IGOR STRUK (AP)

Petitioner;

for

Judicial Review of a determination of the Immigration Appeal Tribunal to refuse leave to appeal

Respondent:

________________

Petitioner: Mitchell, Q.C.; Anderson Strathern, W.S.

Respondent: Thomson, H F Macdiarmid, Solicitor to the Advocate General

18 February 2005

[1] The petitioner, who is a Ukrainian national, made an application for asylum to the Home Secretary on 14 March 2001. The Home Secretary made a determination on 24 June 2001, and thereafter issued removal directions on 9 July 2001. The petitioner applied to the Adjudicator, who decided on his application on 4 January 2002 and refused it. This was notified to the petitioner on 12 February 2002. There was then a further procedural issue which took a considerable time to resolve, and which is no longer of direct interest in this application, although because of the delay the procedural rules applicable to the application have since changed. On 30 January 2002 the Vice President of the Immigration Appeal Tribunal refused the petitioner leave to appeal to the Tribunal against the determination of the Adjudicator to refuse his application for asylum. This determination was notified to the petitioner on 12 February 2002. The petitioner appeals against that decision and in effect also seeks reduction of the determination of the Immigration Appeal Tribunal refusing leave to appeal by challenging the Adjudicator's earlier decision.

[2] The petitioner was born on 26 January 1976 in the Ukraine. He claimed asylum in the United Kingdom on the basis that he was a homosexual and had been persecuted in his home country because of this. In particular he alleged in his application that he had been attacked and beaten on two occasions. For the purpose of the present application, the Adjudicator held that homosexuals in the Ukraine were not a particular social group and that the ill-treatment which he had received did not cross the threshold of severity for establishing persecution. He also held that there was a sufficiency of protection to the petitioner provided by the Ukrainian State. The Adjudicator was in effect not satisfied that the petitioner's complaints were of sufficient moment to satisfy the various relevant tests which would allow him to claim asylum.

[3] The relevant statutory provisions at the material time are contained in the Immigration and Asylum Act 1999 and the Immigration and Asylum Appeal Rules 2000.

[4] Rule 18(1) provides:-

"An appeal from the determination of an adjudicator may be made only with the leave of the Tribunal".

[5] Rule 18(4)(c) provides that the appeal shall

"identify the alleged errors of fact and law in the adjudicator's determination which would have made a material difference to the outcome, together with all the grounds relied on for the appeal;"

[6] Rule 18(7) provides:

"Leave to appeal shall be granted only where -

(a) the Tribunal is satisfied that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard".

[7] Rule 22(1) provides:-

"The Tribunal may consider as evidence any note or record made by the adjudicator of any proceedings before him in connection with the appeal".

[8] Rule 22(2) provides:-

"Subject to paragraph (3), the Tribunal may of its own motion or on the application of any party, consider evidence further to that which was submitted to the adjudicator".

[9] In these circumstances it is clear that the test for the Tribunal in considering the application for leave to appeal is in terms of Rule 18(7), and depends upon the petitioner establishing that there is a real chance of success on any question of fact or law in his appeal. So the test as to whether the Tribunal should grant leave to appeal is different from the test that would be applied in determining the substantive appeal itself. Counsel for the petitioner first of all argued in general terms that if on the present facts as presented by the applicant it could be said that in some cases he would succeed before the Tribunal and in others he would not, then that is enough for present purposes to grant leave to appeal, because the fact that some cases based on similar circumstances might succeed indicates that there must be reasonable grounds to anticipate success in this case. The purpose of the present application therefore is to send the case back to the Immigration Appeals Tribunal to determine whether or not the appeal would succeed.

[8] Counsel for the petitioner also submitted that in support of his appeal there were three issues in the present case which required to be examined. The first concerned whether in the context of the definition of the term "refugee", the applicant was properly to be regarded as a member of a social group. The second issue was whether the applicant had demonstrated that he was subject or liable to persecution as a member of that social group in his native country. The third question was whether the State, not being the cause of the persecution complained of, could nonetheless provide the necessary protection to the applicant from such persecution. The test in each of these issues is not whether their premise had been established on the balance of probabilities, but rather whether there was a real risk that any of the tests would not be met. So if it is not possible to say at this stage how things would fall out before the Tribunal, the petitioner must nonetheless succeed at this stage in getting the case sent back to the Tribunal. Reference was made to Didarul Islam (unreported) 21 February 2003, para.25.

[9] The first question which counsel wished to argue was whether the applicant was a member of a social group comprising male homosexuals in the Ukraine. At paragraphs 28 and 29 of his Determination, the Adjudicator held that the applicant had not established that homosexuals in Ukraine were a social group. In paragraph 28 the Adjudicator held that there was no objective evidence to show that there was any evidence of legal or societal discrimination against homosexuals in Ukraine; the lack of such persecution was therefore fatal to the idea that homosexuals there might be a social group. However, counsel for the petitioner argued that on the evidence available to the Adjudicator there were clear indications that homosexuals were a societal group in the Ukraine, and in Article 5 of the Tribunal's decision it was conceded that this point might be arguable. This therefore meant that the applicant must have real prospects of success in challenging the conclusions of the Adjudicator. In addition, he argued that were a number of decisions in substantive appeals where it had been held that homosexuals in the Ukraine are to be regarded as a social group. An example of this was Bespalko (unreported) 31 October 2001, a decision which was notified on 29 January 2002, the day before the decision issued by the Immigration Appeal Tribunal in this case was released. In paragraph 19 of that decision, the Tribunal concluded that the evidence established that the status of homosexuals in the Ukraine was a social group and the appeal was allowed. Reference was also made to Islam v Secretary of State for the Home Department 1999 2 A.C.629 (para. 651C-G), which suggested that the Adjudicator in the present case had applied the wrong test in determining what constituted a social group. Counsel for the petitioner therefore argued that the Immigration Appeal Tribunal was correct to suggest that the Adjudicator might be wrong in this matter. In short, because there was inconsistency in other Tribunal decisions on matters such as this, that was enough for the applicant to succeed in his appeal at this stage.

[10] In respect of his second ground of appeal, the petitioner's counsel submitted that the Adjudicator was wrong to dismiss the question of persecution in paragraph 30 of his decision. The Adjudicator had concluded that the applicant's complaints did not cross the threshold of sufficient severity into the area of persecution and dismissed the two incidents which the applicant described in support of this part of his claim as mere accidents of ordinary criminal behaviour. Counsel argued that the real question was whether the applicant had proved that there was persecution in terms of the Convention. Threats to Convention rights could amount to persecution; reference was made to Symes and Jorio; Asylum Law and Practice, Chapter 3, para.3.5. Counsel argued that evidence before the Tribunal (at paras.19, 20 and 21) directly pointed to threats in the future, on the basis that if something happened in the past it is likely to happen again. It was clear from the appellant's evidence that there were two incidents. The Adjudicator accepted that the second one was an attack on the applicant based on the fact that he was homosexual (para.21); counsel argued that it was therefore difficult to see how the Adjudicator did not accept (in para. 20) that the earlier assault was also of a similar character. The Adjudicator appeared to suggest that the assaults by themselves did not amount to persecution. However, the contrary view was expressed in Haci Demirka v Secretary of State for the Home Department [1991] 1 NLR 441 (paras. 447E to 448D). Even if the Adjudicator was correct to accept that this was a case which contained only a single beating, such an incident must carry with it the risk of repetition and accordingly the Tribunal would be wrong to find that this did not amount to persecution. A single beating with sufficient viciousness would in itself lead to the same conclusion. In the present case the Adjudicator did not consider these issues (paragraphs 30 and 31); he failed to consider whether such incidents were likely to be repeated or were sufficiently vicious to allow him to come to the conclusion that they had crossed the threshold of severity. He simply ignored what is likely to happen in the future and only dealt with what has happened in the past. In the present case the applicant maintains that he had experienced difficulties in the past and that there was therefore a real risk of repetition in the future. Accordingly, the Adjudicator and subsequently the Tribunal should have accepted that the applicant was a member of a group which was at risk of persecution. Reference was made in support of these various propositions to a case from Australia (RRT Reference No.1/39636 (28 April 2003)) where, unlike in the present case, there was a full analysis of future risk by the Adjudicator.

[11] Petitioner's counsel then presented his third submission which was concerned with whether the Adjudicator should have been satisfied that there was sufficient protection available to the applicant from the State in view of the fact that the persecution complained of by the applicant came from private (in other words non-State) sources. The Adjudicator found that the applicant was not precluded from seeking such protection (para.31) and this was confirmed by the Tribunal (para.5). However, counsel queried the nature of any protection he would receive. In the case of Bobryshev (unreported) which was decided on 19 December 2002 and was therefore before the present Tribunal's decision), the applicant was granted leave to appeal because, although the Adjudicator had concluded that there was effective protection provided by the State, this had not been tested in practice. Accordingly, counsel submitted that in November 2002 the Tribunal should have concluded that there was not a clear availability of State protection for homosexuals in the Ukraine, and that this question needed to be looked at anew. There was nothing in the evidence about reporting any problems to the police, and no reason to assume that the police would act in the event of such complaints. The Adjudicator's conclusion was unsupported by the information before him. In other cases, such as in Bobryshev (supra) and the Australian case cited above, it was suggested that the police in Ukraine were not trustworthy. As suggested earlier, the test in this matter was whether there was a real chance of success in the application, and that meant therefore that there had to be a clear reason for rejecting the applicant's views before the Adjudicator. No such reasons were apparently forthcoming. Counsel contended the applicant's position was strengthened by the Tribunal's inconsistency. In the present case the applicant was said not to be a member of a social group, and that he did not suffer persecution in the circumstances on the basis of discrimination as opposed to simple ill-treatment, but the cases cited earlier contained findings that were inconsistent with this. In the present case the Adjudicator and the Tribunal failed to provide any reasoning for their conclusions that there was no persecution, or lack of protection from the State. Standing the decision of other Tribunals reaching a contrary view, there must be reasonable prospects of success in the present case in the absence of any attempt by the Tribunal to distinguish those other decisions. Accordingly, counsel argued that the applicant was entitled to a reduction of the Tribunal's decision, that the appeal should be granted, and the matter remitted back to the Tribunal.

[12] In response counsel for the respondent argued that the petitioner was wrong to suggest that if there was one good reason for supposing that the Adjudicator had made a mistake, then that was enough for the applicant to succeed before the Tribunal. Rule 18(7)(a) makes it clear that the Tribunal has to be satisfied that the appeal would succeed; this means the appeal as a whole has to succeed and the fact that only one particular ground might succeed would not allow the appeal as a whole to go forward. The function of the Tribunal in terms of Rule 18(4)(c) is to identify any matters of fact or law which would have made a material difference to the outcome of the application and, read with Rule 18(7)(a), deal with the appeal as a whole. That did does not mean that if there was a flaw in the Adjudicator's decision, then leave to appeal must be automatically granted. In the present case the Tribunal had identified a point which might be arguable but concluded that it would not have made any difference to the outcome of the case even if it were successful.

[13] Counsel for the respondent then turned his attention to the applicant's submissions on the merits. He dealt with them in the order in which they appeared in the petition, so far as they appeared to remain live issues. The first ground of appeal in the petition was the challenge to the Adjudicator's conclusion that the assault in 1997 was not motivated because the petitioner was a homosexual. It was perfectly clear that the Adjudicator was entitled to come to the conclusion that this was simply not so. The only reason given by the appellant in his statement for the assault was that his companion had long hair; the assailants were drunk and did not know the petitioner. This was therefore a random act of violence by a group of drunks and could not be related to the applicant's homosexuality.

[14] The second argument in the petition is that the Adjudicator unreasonably rejected the petitioner's account that there was widespread discrimination against homosexuals and failures by the police to protect homosexuals from attack. The Adjudicator clearly disbelieved the petitioner that he had been arrested during police raids on gay bars (para.31). The Adjudicator was entitled to consider in assessing the appropriate level of intolerance or persecution suffered by the applicant that he had been lying to enhance his claims (para.31). The applicant was not able to point to any extraneous sources of persecution. It was not just a case of difficulty in producing evidence as the petitioner claimed; evidence of what happens in the Ukraine was readily available. The question of whether there was State persecution of homosexuals should not be confused with what happened to the petitioner, and the proper tests must be applied to the background evidence. The Adjudicator's approach to this topic could not be faulted. There is no reference to homosexual discrimination in the background information (CIPU document) and it therefore cannot be said that the Adjudicator unreasonably rejected the petitioner's claim in this respect.

[15] The next argument for the applicant concerned the social group issue. Counsel for the petitioner had submitted that the Adjudicator erred in concluding that homosexuals in the Ukraine were not a social group for the purposes of the Convention because it was necessary for such a group to be formed as a result of persecution. It was also submitted for the applicant that in other cases the Tribunal had come to the view that there might be a case for holding that homosexuals in Ukraine were properly considered as a separate social group. However, counsel for the respondent argued that the Tribunal had to identify an error made by the Adjudicator before they could reverse his Decision, and this was not possible in the present case. Each case had to be considered on its own facts. The petitioner had argued that background evidence should be consistent, but in the present case the information available did not support the view that the petitioner had suffered persecution or was part of a social group. The Tribunal (at para.30) did not say that the Adjudicator was wrong on this matter, merely that the point might be arguable. As a secondary submission, counsel for the respondent maintained that it was academic if the Adjudicator was wrong in this respect, namely the question of whether homosexuals in the Ukraine were a social group, it was clearly a relatively insignificant error (Hanif 1999 S.L.T.854). There were other matters which determined the issue in the present case. But the respondent's main submission was that the Adjudicator and his approach was correct; reference had been made to the relevant definition of "refugee" (in Islam v Secretary of State for the Home Department (supra)) where it was held that when deciding what in ordinary parlance is meant by a social group it does not help to consider whether or not someone is a refugee. For example being a woman would not make that person a member of a social group; however, being a woman in Pakistan did make that person a member of a social group because of abuse and persecution from non-state sources, and from the state (because of a potential death sentence for adultery). Accordingly, for the purposes of the present application, the relevant group would not just be a homosexual group, but homosexuals who are persecuted. Cohesiveness in itself does not necessarily lead to the formation of a social group, although it may do. However, there was no evidence before the adjudicator that homosexuals were a cohesive group in the Ukraine. Accordingly, although the petitioner was one of a number of homosexuals in the Ukraine, he was not a member of a relevant social group; there has to be not just persecution but persecution by virtue of membership of that group. The adjudicator in the present case had to consider what made homosexuals in the Ukraine a social group and the only ground available was discrimination. Accordingly, the approach of the adjudicator could not be regarded as an error. He had to make a decision on the evidence. There is not a general trend of different views about homosexuals in the Ukraine in the case authorities, but there is a small number of cases where there are different verdicts based on different evidence. Each of these was decided on the facts and not on the background information, and in any event the background information was not available to the adjudicator in the present case. All that was available was the CIPU report (CP143) which indicated that full protection was available to homosexuals in the Ukraine (p145). There was therefore no evidence of persecution of homosexuals. In Dimitrou (6/4) homosexuals were regarded as a social group in Romania. There however stronger rules existed; there was evidence of police brutality, campaigns against homosexuals and public opprobrium, so that was very different from the present case where the petitioner had for years lived openly as a homosexual. In Skenderat 2000 4 All E.R. 554 an Albanian was held to be part of a social group because of a vendetta. All that that case proved however was that discrimination is not always a pre-requisite for a social group to be formed. It was difficult to see how that could be achieved in the present case if it was not based on discrimination. But it cannot be suggested, and was not in the present or any other case, that all homosexuals are a special group. Such a conclusion would be unjustifiable.

[16] In these circumstances counsel argued that the applicant was wrong to found on decided cases to establish that homosexuals are a special group in Ukraine. This, he said, was not so; in all cases it depends on the evidence available to the adjudicator, and generalisations are not appropriate. In-country data can be inconsistent. It is said that the Tribunal has to be consistent but it is not the case that different conclusions have been reached on the same evidence. Counsel for the respondent then distinguished the present case from the various authorities referred to by the applicant, and reiterated his submission that even if one of the grounds on which the Adjudicator had based his decision was arguable on appeal, the other reasons for his decision would mean that there were still no reasonable prospects of success. The applicant had been living openly as a homosexual and there was only one incident, which involved neighbours, which might suggest that he had been attacked because he was a homosexual. In these circumstances there was only a minimal risk of further harm in the future. The incidents complained of were trivial, and did not amount to persecution. The question of state protection therefore did not arise; nonetheless such state protection did exist. In these circumstances the applicant had wholly failed to meet the appropriate tests and standards, and the application should be refused.

[17] The petitioner's next argument, contained in paragraph 8 in petition, was that the Adjudicator had only had regard to the past and not to the future. Counsel for the respondent maintained that this was clearly not so; the whole thrust of the decision looked to the future and contemplated the question of the protection by the state against further difficulties (paras.31, 32 and 33). The applicant had been openly living as a homosexual for a number of years in a number of relationships and has suffered only one incident when he may have been discriminated against by neighbours who knew him after a verbal altercation. There could only be a minimal sense of risk in the future. A single beating with a real risk of repetition may constitute persecution, but that conclusion is far more likely to be reached where the discrimination is state-based All of the applicant's complaints had failed to cross the threshold of severity.

[18] I have come to the view that the Immigration Appeal Tribunal was correct to refuse leave to appeal in this case. In particular, I am satisfied that the Tribunal was justified in its conclusion, in terms of Rule 18(7)(a), that in the circumstances the appeal did not have a real prospect of success. In respect of the three grounds on which the present review is based, I consider that at least one of those suggests that the appeal would not have succeeded. I note that, as was I think fully accepted by counsel for the petitioner, even if one of these grounds was properly regarded as failing to provide a real prospect of success in the appeal, that would be enough to refuse the present application irrespective of the effectiveness of the other grounds.

[19] The first submission by the petitioner was that he was entitled to be regarded as a member of a social group. In particular, the definition of that societal group is that he is a homosexual living in Ukraine. The Adjudicator found that in certain circumstances homosexuals can form a social group, if as a group defined by their sexuality they suffer discrimination (Shah and Islam 1999 1 NLR 144). However, the Adjudicator found also that the applicant had tendered no evidence of legal or societal discrimination against homosexuals in Ukraine. The Immigration Appeal Tribunal did accept that this conclusion might be arguable. It would appear that this observation may have been partly based on other appeals which suggested homosexuals in Ukraine might be regarded as such a group. An examination of these other cases do not reveal any line of authority which holds that homosexuals in Ukraine should be so regarded. In the case of Bespalko (supra) the Tribunal did reach a view that homosexuals in Ukraine were a special group, but the circumstances in that case, and the arguments upon which the application proceeded, appear to have been very different to the present case. Further, in Bespalko the Tribunal made it clear (in paragraph 14) that their conclusions on the treatment of homosexuals in Ukraine related wholly to the evidence in that particular case, and should specifically not be regarded as a general conclusion that homosexuals in Ukraine were subject to persecution. The Adjudicator in the present case had found no such evidence; indeed the personal experience of the applicant appear to suggest very little in the way of such persecution. Accordingly, even if regard is had to the conclusions reached in other cases, the Tribunal could be said to be justified in concluding that there was no real prospect of success in pursuing this ground of appeal in the present application. However, as the Tribunal has conceded that this point might be arguable, I have concluded that I should accept that the petitioner's submissions in this respect were well-founded, in the sense that this argument, had it stood alone, should be remitted back to the Tribunal for reconsideration.

[20] However, the Adjudicator was in my view wholly justified in concluding that the applicant had not demonstrated that he was subject or liable to persecution as a member of that social group in his native country. The applicant had testified that he had been assaulted twice in all the years that he had lived in the Ukraine. On one occasion the assault was clearly quite unrelated to his homosexuality; the applicant had simply got into an altercation with some drunken strangers. The other assault appears to have followed a neighbour's dispute and was likely to have been characterised in part at least by his sexual orientation. Beyond that incident, and some abuse and graffiti, it appears that the applicant had not been the subject of anything other than very occasional and minor difficulties. On other areas of complaint, he was disbelieved. It would appear that the applicant had lived openly as a homosexual in Ukraine for a considerable period, and had enjoyed a number of such relationships during that time. In addition, the objective evidence available to the Adjudicator did not suggest that such material persecution existed in any kind of general sense. In the circumstances it is very difficult to see how the applicant's complaint can be said to have crossed the threshold of severity to amount to persecution. While homosexuals may form a social group in Ukraine which has been subject to persecution because of their sexuality, it does not necessarily follow that every homosexual in Ukraine qualifies for inclusion in that group. The Adjudicator has concluded that the applicant has not suffered any discrimination or persecution. Clearly, being a homosexual in Ukraine by itself would not justify the Adjudication or the Tribunal in granting the applicant's request for asylum. While I accept that the law in this area is very much as the petitioner's counsel described, I cannot see that in the event there could be any real prospect of success on this ground of appeal.

[21] The final ground of appeal is that the applicant claimed that he would not receive protection from the police against such persecution. The Adjudicator noted that the applicant had never sought that protection but that he understood from friends that it was not forthcoming. The Adjudicator concluded that there was a complete lack of any objective evidence showing discrimination against homosexuals as opposed to general inefficiency and corruption in the police. The applicant had no direct experience of any failure to receive protection in this respect. Homosexuality had been legalised in Ukraine for a number of years. In these circumstances I do not think it can be said that the Adjudicator unreasonably rejected the petitioner's claim. The applicant was not able to point to any extraneous sources of persecution. There was no reference to homosexual discrimination in the background information, and no information to suggest that the police in general terms would fail to protect someone in the applicant's position. However, in view of the Tribunal's decision in Bespalko (supra) it would again be difficult to refuse the petitioner's request that this issue, had it stood alone, should not be looked at again. But the applicant's case in my view must fail because he failed to establish that he himself had been persecuted because of his homosexuality in terms of his second submission. That is in my view sufficient to indicate that this appeal would have not succeeded. In all the circumstances I shall refuse the petition.