UK - Court of Appeal, 11 November 2003, R (Bagdanavicius) v Secretary of State for the Home Department (CA) [2005] EWCA Civ 1605

Facts:

The applicants were Lithuanian nationals. They were married and had a 3-year-old son. The husband was of Roma ethnic origin; the wife was not. Because of this they were subjected to persistent harassment and violence in particular at the hands of the wife's brother and various of his associates. They left Lithuania in 2002 and claimed asylum immediately on arrival in the UK. Their claims were refused and certified as being “clearly unfounded.” They challenged the certification by Judicial Review.

Decision & reasoning:

The applicants argued, amongst other matters, that the Secretary of State had applied the wrong legal test in assessing their claim for protection against removal under Art 3 of the ECHR.  They argued that in order to succeed that they need establish only a real risk of harm on return to Lithuania.   The Court of Appeal dismissed the appeal and gave guidance.  The appellants subsequently unsuccessfully appealed to the House of Lords (see separate summary).  An edited version of the Court of Appeal’s guidance is set out below.

The common threshold of risk for Article 3 ECHR and asylum claims

1) The threshold of risk is the same in both categories of claim;

Asylum claims

2) An applicant who claims to be in fear of persecution is entitled to asylum if he can show a well-founded fear of persecution for a Refugee Convention reason and that there would be insufficiency of state protection to meet it;

3) Fear of persecution is well-founded if there is a "reasonable degree of likelihood" that it will materialise; 

4) Sufficiency of state protection, whether from state agents or non-state actors, means a willingness and ability on the part of the receiving state to provide through its legal system a reasonable level of protection from ill-treatment of which the applicant for asylum has a well-founded fear;

5) The effectiveness of the system provided is to be judged normally by its systemic ability to deter and/or to prevent the form of persecution of which there is a risk, not just punishment of it after the event;

6) Notwithstanding systemic sufficiency of state protection in the receiving state, an applicant may still have a well-founded fear of persecution if he can show that its authorities know or ought to know of circumstances particular to his case giving rise to his fear, but are unlikely to provide the additional protection his particular circumstances reasonably require;

Article 3 claims

7) The same principles apply to claims in removal cases of risk of exposure to Art 3 ill-treatment in the receiving state, and are, in general, unaffected by the approach of the Strasbourg Court in Soering; which, on its facts, was, not only a state-agency case at the highest institutional level, but also an unusual and exceptional case on its facts;

8) The basis of an Art 3 entitlement in a removal case is that the claimant, if sent to the country in question, would be at risk there of Art 3 ill-treatment.

9) In most, if not all, Art 3 cases in this context the concept of risk has the same or closely similar meaning to that in the Refugee Convention of "a well-founded fear of persecution", save that it is confined to a risk of Art 3 forms of ill-treatment and is not restricted to conduct with any particular motivation or by reference to the conduct of the applicant;

10) The threshold of risk required to engage Art 3 depends on the circumstances of each case, including the magnitude of the risk, the nature and severity of the ill-treatment raised and whether the risk emanates from a state agency or non-state actor;

11) In most, but not necessarily all, cases of ill-treatment which, but for state protection, would engage Art 3, a risk of such ill-treatment will be more readily established in state-agency cases than in non-state actor cases – there is a spectrum of circumstances giving rise to such risk spanning the two categories, ranging from breach of a duty by the state of a negative duty not to inflict Art 3 ill-treatment to a breach of a duty to take positive protective action against such ill-treatment by non-state actors;

12) An assessment of the threshold of risk appropriate in the circumstances to engage Art 3 necessarily involves an assessment of the sufficiency of state protection to meet the threat of which there is a such risk - one cannot be considered without the other whether or not the exercise is regarded as "holistic" or to be conducted in two stages;

13) Sufficiency of state protection is not a guarantee of protection from Art 3 ill-treatment any more than it is a guarantee of protection from an otherwise well-founded fear of persecution in asylum cases - nor, if and to the extent that there is any difference, is it eradication or removal of risk of exposure to Art 3 ill-treatment;

14) Where the risk falls to be judged by the sufficiency of state protection, that sufficiency is judged, not according to whether it would eradicate the real risk of the relevant harm, but according to whether it is a reasonable provision in the circumstances;

15) Notwithstanding such systemic sufficiency of state protection in the receiving state, an applicant may still be able to establish an Art 3 claim if he can show that the authorities there know or ought to know of particular circumstances likely to expose him to risk of Art 3 ill-treatment;

16) The approach is the same whether the receiving country is or is not a party to the ECHR, but, in determining whether it would be contrary to Art 3 to remove a person to that country, our courts should decide the factual issue as to risk as if the ECHR standards apply there.

Outcome:

The appeal was dismissed.

Subsequent proceedings:

R (Bagdanavicius) v Secretary of State for the Home Department [2005] UKHL 38 (See summary on EDAL)

Observations/comments:

The Court of Appeal’s guidance has been subsequently applied in IM (Sufficiency of Protection) Malawi [2007] UKAIT 00071 and AW (sufficiency of protection) Pakistan [2011] UKUT 31(IAC) (see separate summary).