UK - House of Lords, 11 October 2010, R (Bagdanavicius) v Secretary of State for the Home Department (UKHL) [2005] UKHL 38
| Country of Decision: | United Kingdom |
| Country of applicant: | Lithuania |
| Court name: | House of Lords |
| Date of decision: | 11-10-2010 |
| Citation: | [2005] UKHL 38 |
| Additional citation: | [2005] 2 WLR 1359, [2005] INLR 422, [2005] 2 AC 668, [2005] HRLR 24, [2005] Imm AR 430, [2005] UKHRR 907, [2005] 4 All ER 263 |
Keywords:
| Keywords |
|
Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
|
Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
|
Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
|
Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
Headnote:
The House of Lords confirmed that in addition to establishing a real risk of harm, the applicant would also have to show that their state has failed to provide reasonable protection.
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. As a result of this they were subjected to persistent harassment and violence in particular at the hands of the wife's brother and his various associates. They left Lithuania in 2002 and claimed asylum immediately on arrival in the United Kingdom. Their claims were refused and certified as being “clearly unfounded”. They challenged the certification by Judicial Review.
Decision & reasoning:
The applicants argued that the Secretary of State had applied the wrong legal test in assessing their claim for protection against removal under Art 3 of the European Convention on Human Rights (ECHR). They argued that in order to succeed that they need establish only a real risk of harm on return to Lithuania.
The House of Lords dismissed the appeal finding “any harm inflicted by non-state agents will not constitute Art 3 ill-treatment unless in addition the state has failed to provide reasonable protection. If someone is beaten up and seriously injured by a criminal gang, the member state will not be in breach of Art 3 unless it has failed in its positive duty to provide reasonable protection against such criminal acts.”
Outcome:
The appeal was dismissed.
Observations/comments:
The House of Lords did not comment on guidance provided by the Court of Appeal in the same case for assessing cases where the ill treatment feared is from non-state actors. An edited version of the guidance is set out in a separate summary. This 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).
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| UK - Court of Appeal, 3 January 2002, Svazas v Secretary of State for the Home Department [2002] EWCA Civ 74 |
| UK - House of Lords, 6 July 2000, Horvath v. Secretary of State for the Home Department [2000] UKHL 37 |
| ECtHR - Ammari v Sweden (Application no. 60959/00) (unreported) 2002 |
| ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89) |
| ECtHR - Nasimi v Sweden (Application no 38865/02) (unreported) 2004 |
| ECtHR - Tomic v United Kingdom (Application no. 17837/03) (unreported) 2003 |
| UK - McPherson v. SSHD [2002] INLR 139 |
| UK - R (on the application of Ullah) v Special Adjudicator, Do v Secretary of State for the Home Department [2004] UKHL 26, [2004] 3 All ER 785, [2004] 2 AC 323, [2004] 3 WLR 23 |
Follower Cases:
| Follower Cases |
| UK - Upper Tribunal, 11 November 2010, AW (sufficiency of protection) Pakistan [2011] UKUT 31(IAC) |