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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  INLR 15,  EWCA Civ 3026,  Imm AR 205
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEALS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WARD
LADY JUSTICE HALE
|- and -
|SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
Mr. J. Howell QC & Mr. R. Tam [Mr D Hart on 2/12/99] (instructed by the Treasury Solicitor for the Respondent)
Crown Copyright ©
LORD JUSTICE STUART-SMITH:
(a) The Tribunal were in error in taking the question into consideration when deciding whether what the Appellant had been subjected to amounted to persecution. The sole question, on this aspect of the case, is whether the ill-treatment received by the Appellant at the hands of the non-state agents, and to be expected and feared from them on return to his country, amounts to persecution.
(b) The question falls to be considered when the Special Adjudicator or Tribunal is considering whether the Appellant's fear of persecution is well-founded. If it falls to be considered at this stage, then the lower standard of proof, namely that there is a reasonable likelihood of persecution if the Appellant is returned, is applicable (R v Secretary of State for the Home Department, ex parte Sivakumaran and others  AC 958). Had the Tribunal so considered it they would or should have concluded that the Appellant had a well-founded fear of persecution.
(c) That the Tribunal should not have considered the question as a separate issue. But if they were right to do so, their decision was perverse; alternatively they took into consideration irrelevant matter and in so doing reached a conclusion inconsistent with their own earlier finding.
(d) The grounds of appeal raise further matters, the most important of which is whether certain acts of discrimination affecting his ability to find work, and denial of normal public facilities including marriage and education for his child, considered separately or in conjunction with the persecution by non-state agents, amounted to persecution. These have been conveniently referred to as 'Category Three Rights' adopting the well-known classification by Professor Hathaway in his book 'The Law of Refugee Status' at page 109.
(e) Counsel for the Appellant made a number of other discrete criticisms of the decision of the Tribunal.
(a) That the question whether the Applicant was unable, or through fear of persecution, unwilling to avail himself of the protection of the state was a discrete and separate issue which fell to be determined if the Appellant satisfied the Adjudicator or Tribunal that the ill-treatment amounted to persecution for a convention reason and that he had a well-founded fear of being persecuted if returned to Slovakia. It should not be considered as an ingredient in these two issues.
(b) Alternatively if his first submission was not correct, the Tribunal were right to consider it in relation to the question whether what the Appellant feared amounted to persecution and that it did not form part of the consideration of whether the Appellant's fear was well-founded.
(c) That the Tribunal's conclusion that the Appellant had not established that he was unable or unwilling through fear of persecution to avail himself of the state's protection was a finding of fact which the Tribunal were entitled to reach and it could not be impugned on the grounds of perversity or consideration of irrelevant material. Even if the Tribunal were wrong to consider the point in relation to the issue of persecution, this did not affect their conclusion on the protection issue.
(d) That the Tribunal did not misdirect themselves when considering whether abuse of the third category rights amounted to persecution and their decision on this could not be impugned.
"A. For the purpose of the present Convention, the term 'Refugee' shall apply to any person who....(2) 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......"
(1) He is out of the country of his nationality because he has a fear of ill-treatment.
(2) The ill-treatment that he fears is of a sufficiently grave nature as to amount to persecution.
(3) His fear of persecution is well-founded.
(4) The persecution is for a convention reason.
(5) He is unable, or owing to fear of the persecution, is unwilling to avail himself of the protection of that country.
"What is the reason for the persecution which the appellants fear? Here it is important to notice that it is made up of two elements. First, there is the threat of violence to Mrs Islam by her husband and his political friends and to Mrs Shah by her husband. This is a personal affair, directed against them as individuals. Secondly, there is the inability of the state to do anything to protect them. There is nothing personal about this. The evidence was that the state would not assist them because they were women. It denied them a protection against violence which it would have given to men. These two elements have to be combined to constitute persecution within the meaning of the Convention. As the Gender Guidelines for Determination of Asylum Claims in the UK (published by the Refugee Women's Legal Group in July 1998) succinctly puts it (at p5): "Persecution = Serious Harm = The Failure of State Protection."
But I agree with both counsel that this statement is not necessary for the decision in the case which was whether or not the women of Pakistan were a particular social group and the present issue was not before the House. There was no dispute in that case that women in Pakistan were discriminated against in matters of fundamental human rights, which amounted to persecution and that the state provided no protection for them. I do not think therefore that this brief exposition of Lord Hoffman can be taken as definitive. Moreover there are passages in the speech of Lord Steyn which appear to me to point in a different direction. At p1020H he said:
"In order to qualify as a refugee the asylum seeker (assumed to be a woman) must therefore prove (1) that she has a well founded fear of persecution; (2) that the persecution would be for reasons of race, religion, nationality, membership of a particular social group, or political opinion; (3) that she is outside the country of her nationality; (4) that she is unable, or owing to fear, unwilling to avail herself of the protection of that country."
And at p1021H he said:
"...the principal issue before the House is the meaning and application of the words "membership of a particular social group." It is accepted that each appellant has a well founded fear of persecution in Pakistan if she is returned to that country. The appellants are outside the country of their nationality. And they are unable to avail themselves of the protection of Pakistan. On the contrary, it is an unchallenged fact that the authorities in Pakistan are unwilling to afford protection for women circumstanced as the appellants are. Except for the requirements inherent in the words "persecution for reasons of.....membership of a particular social group" in article 1A(2) all the conditions of that provision are satisfied."
That seems to me to be a similar analysis to that which I have set out in paragraph 10 and suggests separation of the different ingredients. None of the other authorities to which Ward LJ refers in his draft judgment on this aspect of the case are binding on this Court. Nor do they persuade me that both counsel were in error on this point.
"(1) Nationals who are outside their country owing to a well-founded fear of persecution for a Convention reason, and are unable to avail themselves of the protection of their country; (2) nationals who are outside their country owing to a well-founded fear of persecution for a Convention reason, and, owing to such fear, are unwilling to avail themselves of the protection of their country."
At E he said:
"It will be noticed that in each of categories (1) and (2) the asylum-seeker must satisfy two separate tests: what may, for short, be called "the fear test" and "the protection test"."
At p306A he said that category (1) included:
"..the important class of those who are sometimes called "third party refugees", i.e. those who are subject to persecution by factions within the state. If the state in question can make protection available to such persons, there is no reason why they should qualify for refugee status. They would have satisfied the fear test, but not the protection test. Why should another country offer asylum to such persons when they can avail themselves of the protection of their own country? But if, for whatever reason, the state in question is unable to afford protection against factions within the state, then the qualifications for refugee status are complete. Both tests would be satisfied."
I regard this as a clear statement of principle that the 'fear test', which embraces the first three requirements which I have set out in paragraph 10, is separate and distinct from the protection test, which is embraced in paragraph 10(5).
" 'Convention refugee' means any person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion:
(a) is outside the country of his nationality and is unable or, by reason of such fear, is unwilling to avail himself of the protection of that country, or
(b) not having a country of nationality, is outside the country of his former habitual residence and is unable or, by reason of such fear, is unwilling to return to that country...."
"The section appears to focus the inquiry on whether there is a 'well-founded fear'. This is the first point the claimant must establish. All that follows must be 'by reason of' that fear. The first category requires the claimant to be outside the country of nationality by reason of that fear and unable to avail him- or herself of its protection. The second requires that the claimant be both outside the country of nationality and unwilling to avail him- or herself of its protection, by reason of that fear. Thus, regardless of the category under which the claimant falls, the focus is on establishing whether the fear is 'well-founded'. It is at this stage that the State's inability to protect should be considered. The test is in part objective; if a State is able to protect the claimant, then his or her fear is not, objectively speaking, well-founded. Beyond this point, I see nothing in the text that requires the State to be complicit in, or be the source of, the persecution in question."
"Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of State apparatus, such as that recognised in Lebanon in Zalzali, it should be assumed that the State is capable of protecting a claimant."
That is clearly not the case here. But the state may be unwilling to afford protection to a certain class of its citizens if there is widespread and systemic indifference to their plight on the part of the law enforcement agencies such as the police and the courts.
"Is there in place in the country a sufficiency of protection? One needs to enquire into the various steps which have been taken by the country to see whether this protection is in place. If this sufficiency of protection is in place, then the need for international protection is not required. Thus it is not the test simply to ask whether the country "knowingly tolerates" persecutory acts by its agents or by sections of the community. Neither is it the test to ask whether the protection is effective...we believe that it is indeed the responsibility of the decision maker to ascertain whether the systems of domestic protection which are in place are sufficient from the perspective of international law.' (Debrah). As the Tribunal said in Chinder Singh, "In order to decide whether the protection is sufficient, it will of course be necessary to have some regard to its effectiveness. How much regard will depend upon the circumstances of the individual case." "
"..persecution must at least be persistent and serious ill-treatment without just cause."
"Third are those rights contained in the UDHR and carried forward in the International Covenant on Economic, Social and Cultural Rights. In contrast to the ICCPR, the ICESCR does not impose absolute and immediately binding standards of attainment, but rather requires states to take steps to the maximum of their available resources to progressively realise their rights in a non-discriminatory way. The basic values protected are the right to work, including just and favourable conditions of employment, remuneration, and rest, entitlement to food, clothing, housing, medical care, social security, and basic education; protection of the family, particularly children and mothers; and the freedom to engage and benefit from cultural, scientific, literary, and artistic expression. While the standard of protection is less absolute than that which applies to the first two categories of rights, a state is in breach of its basic obligations where it either ignores these interests notwithstanding the fiscal ability to respond, or where it excludes a minority of its population from their enjoyment. Moreover, the deprivation of certain of the socio-economic rights, such as the ability to earn a living, or the entitlement to food, shelter, or health care will at an extreme level be tantamount to the deprivation of life or cruel, inhuman or degrading treatment, and hence unquestionably constitute persecution."
"More importantly, the various acts of discrimination identified in all the literature, and commented upon my Mr McGeachy, being third category rights, are not in our view sufficiently serious, even when treated cumulatively, as to amount to persecution. It is our view that the problems associated with unemployment amongst the Roma in Slovakia are due primarily to poor education and lack of professional qualifications making it difficult for them to compete successfully in the labour market."
"The manifestations of violence that have been documented are not, however, in our view sufficiently serious to entitle us to conclude that acts of discrimination and breaches of third category rights are such that the fear which the appellant has to return is that of persecution rather than that of discrimination. It is our view that while the appellant has a genuine and well-founded fear of discrimination, this does not entitle him to surrogate protection under the Geneva Convention as understood and applied in the United Kingdom."
(a) Article 6. There is no question that discrimination in the field of employment etc. amounts to an infringement of the right of protection of life by law.
(b) Article 12. It is not clear how the system of residence permits infringes the right to movement or freedom to choose his residence. In any event the system applies to all Slovaks.
(c) Article 23. We have not been shown any provision of Slovakian law that prohibits Romas from marrying or bringing up a family. The evidence of the Appellant shows obstruction by a certain official to his marriage until this official was replaced.
(d) Article 26 deals with equality of protection before the law. The law does not discriminate against Roma by excluding them from protection.
"We can summarise this evidence by stating that it is our view that it shows quite conclusively that there is racial violence against the Roma perpetrated by "followers of the Skinhead movement". The police do not conduct proper investigation in all cases and there are instances where they have been very slow to conduct a full investigation. But stiff sentences are imposed at times for crimes which are racially motivated, for example the case of Mario Goral's death. There is increasing evidence of human rights activists being involved in Roma cases, and in Topolcany the perpetrators of a brutal attack by a gang of skinheads on Romani children were prosecuted. The risks of attacks by skinheads is real and we have cogent evidence that it has happened. Of course, even on the appellant's own story, such attacks have not happened to the appellant; and we conclude, on the basis of the evidence we have read that these violent attacks are on he whole isolated and random attacks by thugs.
The police are seen to be inefficient and ineffective by the Roma, and it is the case that they very rarely seek police protection. There is some evidence that the police have been slow to deal with complaints. On the other hand, there is also evidence that there have been prosecutions, and the police have intervened to provide protection when asked. Indeed in the instant case itself, the police did come to investigate."
"We have looked at all this evidence, and have applied the principles which we have enunciated in this determination in deciding whether or not the appellant has demonstrated that he has a reasonable likelihood of a well-founded fear of persecution if he is returned to Slovakia. We have decided that he falls below the high threshold which we believe is required for international protection in a case where the fear is of an accumulation of discriminatory acts and where it is alleged that there is not a sufficiency of protection from non-state agents. It is our view that his fear is not that of persecution.
Our reasons are, in summary, as follows:
(a) The framework within which the appellant would be required to readapt if he were to return to Slovakia has to an extent now changed since the 1988 Election, and the subsequent departure of Meciar. It is of course too early to know what will happen, and there are bound to be difficult economic times ahead for the country. However, it is our view that, now that the extreme nationalist tendencies have been relegated to a much smaller section of the community than previously, it is likely that there will be much more emphasis on ties with the EU and other West European organisations. This is likely to enable international pressure to be placed on the Government to improve the human rights situation in the country for minority groups, especially the Roma. The situation therefore is today quite different from the situation in the country when Mr McGeachy was writing his determination in Kloc.
(b) But in any event and more importantly, our reading of the literature, although troublesome, does not bring is to the conclusion that the discrimination combined with the violence, together and accumulated, can amount to persecution. We believe that he literature shows that Slovak Roma as a group and as individuals have a fear, which is genuine and well-founded, of discrimination. It may be that for some Slovak Roma, who perhaps have been the victims of serious violence, the threshold would be crossed. But for the majority of Roma from Slovakia, and in particular for this appellant, we believe that the threshold has not been crossed, and he cannot claim the benefit of international protection under the terms of the Geneva Convention."
"We have also read of course the material which has been submitted in relation to the results of the Slovak elections and the likely change of Government. It is our view that it is too early to draw any inferences from the election results, and it would be wrong of us to speculate. As of the latter part of 1998, therefore, we do not think that the plight of the Roma is markedly different to that which is documented in the UNHCR Guidelines of February 1998."
"We do not think that the East African Asian case, dealing as it does with the European Convention on Human Rights, can be relevant in the context of defining "persecution": discrimination for any reason is pernicious, and it is our opinion that the circumstances for the threshold being crossed so as to amount to persecution should have nothing to do with the reason for the discrimination."
LORD JUSTICE WARD:
Milan Horvath is a citizen of Slovakia. He arrived in the United Kingdom in October 1997 and claimed asylum. He is a gypsy. He said he feared persecution in Slovakia mainly from the brutal ill-treatment of the minority Roma community by the local skinheads, against whose malign activities the Slovak police failed to provide protection. He complained that his father had been beaten to death, though some years ago; that his brother had been attacked and beaten with weapons; that their home was ransacked and that they were in such a state of fear that they had to dig a hole in the ground in their back garden and regularly take shelter there at night. The police were either not interested or powerless to protect the gypsies. He also complained that there was discrimination against them in such matters as their freedom to marry and their full and free enjoyment of education. His statement, adjudged to be credible, concluded as follows:-
"If we are returned to Slovakia, I am afraid that I will be again persecuted by the skinheads because I am a Gypsy. I cannot get protection from the police who don't care at all about our problems. I want to stay in the UK where I live a peaceful life without fear."
He was refused asylum by the Secretary of State, by the Special Adjudicator and by the Immigration Appeal Tribunal, a legally qualified panel under the presidency of His Honour Judge David Pearl. The facts and the salient features of the judgment under appeal are set out in the judgment of Stuart-Smith L.J., which I have read in draft. The appeal is brought with the permission of Brooke L.J.
The appeal raises interesting and difficult questions of some importance to the operation of the Convention relating to the Status of Refugees, 1951. As amended, Article 1 gives this definition of the term "Refugee":
"A. for the purpose of the present Convention, the term "refugee" shall apply to any person who :
(2) 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..."
The definition is in two parts. The first is that the applicant must presently be outside the country of his nationality owing to a well-founded fear of being persecuted for Convention reasons; and the second is that he must presently be unable or, owing to such fear, unwilling to avail himself of his country's protection. In Adan v Home Secretary  1 AC 293, Lord Lloyd of Berwick identified the need to satisfy two separate tests which, for short, he called "the fear test" and "the protection test." Since, as I read his speech, no test as such is set out, I apprehend him to be referring to a fear limb and protection limb within the definition, but for convenience I shall adopt his phraseology. On closer analysis one can identify six aspects of the definition:-
1. being out of the country of nationality because he is in fear,
2. the fear being of persecution,
3. that fear being well-founded,
4. the persecution being for a Convention reason,
5. being unable to avail himself of his country's protection or, as an the alternative to this,
6. being unwilling owing to such fear so to avail himself.
Whether one should look at these aspects discretely or whether the approach is holistic is one of the matters, which divides Stuart-Smith L.J., and me. On the facts of this case as presented to us, the main issues as I see them are:-
1. Is the nature and extent of State protection relevant-
(i) to the definition of persecution when the ill-treatment is meted out by so-called "non-State agents", or
(ii) to the consideration of whether the fear of persecution is well-founded, or
(iii) only to the question whether the asylum-seeker is unable or unwilling to avail of the protection of his country of origin, or
(iv) in one way or another to all of these matters?
2. What level of discriminatory denial of human rights amounts to persecution?
3. What level of State protection is required?
4. To what standard and how must persecution be established?
Some introductory observations.
Since we are engaged in gleaning the meaning of the definition, I should remind myself that:-
"One is more likely to arrive at the true construction of Article 1 (2) by seeking a meaning which makes sense in the light of the Convention as a whole, and the purpose which the framers of the Convention were seeking to achieve, rather than by concentrating exclusively on the language. A broad approach is what is needed, rather than a narrow linguistic approach:"
per Lord Lloyd in Adan at p. 305 E. That of course accords with the general rule of interpretation of treaty provisions which appears in Article 31 of the Vienna Convention on the Law of Treaties (Vienna, 23 May 1969), paragraph 1 of which provides:-
"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."
The preambles provide an insight into the purpose of the Convention. By the first, "the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination", and the fourth acknowledges that "the grant of asylum may place unduly heavy burdens on certain countries." As Lord Steyn observed in Islam v Secretary of State for the Home Department  2 WLR 1015, 1021G:-
"The relevance of the preambles is two-fold. First they expressly show that a premise of the Convention was that all human beings shall enjoy fundamental rights and freedom. Secondly, and more pertinently, they show that counteracting discrimination, which is referred to in the first preamble, was a fundamental purpose of the Convention."
In Reg. v Home Secretary, ex parte Sivakumaran  1 A.C. 958, 992, Lord Keith of Kinkel reflected that:-
"... the general purpose of the Convention is surely to afford protection and fair treatment to those for whom neither is available in their own country, and does not extend to the allaying of fears not objectively justified, however reasonable these fears may appear from the point of view of the individual in question."
La Forest J. in Canada (Attorney-General) v Ward  INLR 42, 51g, giving the judgment of the Supreme Court of Canada, said:-
"At the outset, it is useful to explore the rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination. International refugee law was formulated to serve as a back-up to the protection one expects from the State of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home State for protection before the responsibility of other States became engaged. For this reason, James Hathaway refers to the refugees scheme as "surrogate or substitute protection", activated only upon failure of national protection: see The Law of Refugee Status  at p. 135."
Then the broad purpose, which the Convention seeks to achieve, is that the international community will afford sanctuary to the refugee who seeks safety and freedom elsewhere if his core fundamental human rights have not enjoyed respect and protection from his home State.
There is surprisingly little clear authority on the meaning of persecution. As the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status observed in paragraph 51:-
"There is no universally accepted definition of "persecution", and various attempts to formulate such a definition have met with little success."
Despite that discouraging note, it is necessary to understand what is encompassed by the notion of persecution. Nolan J. attempted a definition in R v Immigration Appeal Tribunal ex parte Jonah  Imm. A.R. 7, 13, where he said :-
"The dictionary definition, according to the Shorter Oxford English dictionary, has under "persecute" the meanings: "To pursue, hunt, drive" firstly, and secondly: "to pursue with malignancy or injurious action; esp. to oppress for holding a heretical opinion or belief". ... to my mind the proper approach must be to apply to the word "persecution" its ordinary meaning as found in the dictionary."
In Sandralingham and Ravichandran v Secretary of State for the Home Department  Imm A R 97 Staughton L.J. said :-
"Persecution must at least be persistent and serious ill-treatment without just cause by the State, or from which the State can provide protection but chooses not to do so."
Mr Plender Q.C. observes, and the observation is correct, that the court was not there dealing with persecution by non-State agents and so he urges caution in applying that definition to the facts of this case.
In Adan, where the issue was whether it was necessary to show a current well-founded fear of persecution or whether an historic fear was sufficient, Lord Lloyd identified at p. 304 four categories of refugee the first two of which were:-
"(1) nationals who are outside their country owing to a well-founded fear of persecution for a Convention reason, and are unable to avail themselves of the protection of their country;
(2) nationals who are outside their country owing to a well-founded fear of persecution for a Convention reason, and, owing to such fear, are unwilling to avail themselves of the protection of their country."
At p. 306A, he observed that category (1) is not confined to refugees who were subject to State persecution because, ex hypothesi, they would be unable to avail themselves of State protection. He said:-
"But category (1) is not so confined. It also includes the important class of those who are sometimes called "third party refugees," i.e. those who are subject to persecution by factions within the State. If the State in question can make protection available to such persons, there is no reason why they should qualify for refugee status. They would have satisfied the fear test, but not the protection test. Why should another country offer asylum to such persons when they can avail themselves of the protection of their own country? But if, for whatever reason, the State in question is unable to afford protection against factions within the State, then the qualifications for refugee status are complete. But both tests would be satisfied."
In Reg. v I.A.T., ex parte Shah  2 WLR 1015, the only dispute related to the question whether the acknowledged persecution by the State was by reason of the applicants' membership of a particular social group. When Lord Hoffmann dealt with the question of causation he said:-
"What is the reason for the persecution which the appellants fear? Here it is important to notice that it is made up of two elements. First, there is the threat of violence to Mrs Islam by her husband and his political friends and to Mrs Shah by her husband. This is a personal affair, directed against them as individuals. Secondly, there is the inability or unwillingness of the State to do anything to protect them. There is nothing personal about this. The evidence was that the State would not assist them because they were women. It denied them a protection against violence which it would have given to men. These two elements have to been combined to constitute persecution within the meaning of the Convention. As the Gender Guidelines for the Determination of Asylum Claims in the UK (published by the Refugee Women's Legal Group in July 1998) succinctly puts it (at p. 5): "Persecution = Serious Harm + The Failure of State Protection." "
I am grateful to Hale L.J. for having drawn my attention to Reg. v Secretary of State for the Home Department, ex parte Adan  INLR 362. Laws L.J. noted that the difference in approach between the subscribers to the "accountability" theory and those, including the United Kingdom, who apply the "protection" theory. At p. 377 he said :-
"Our courts recognise persecution by non-State agents for the purposes of the Convention in any case where the State is unwilling or unable to provide protection against it, and indeed whether or not there exist competent or effective governmental or State authorities in the country in question. This is what has been called the "protection" theory. It is, as we have said, shared by a majority of the States signatory to the Convention and the UNHCR."
The search for the true meaning of "persecution" can be extended. Dealing with agents of persecution, the UNHCR Handbook states in paragraph 65:-
"Where serious discriminatory or other offensive acts are committed by the local populous, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection."
The Joint Position of the European Council (O.J. 1996 L 63/2) deals with persecution by third parties in paragraph 5.2 and provides:-
"Persecution by third parties will be considered to fall within the scope of the Geneva Convention where it is based on one of the grounds in Article 1A of that Convention, is individual in nature and is encouraged or permitted by the authorities."
Professor Hathaway is an acknowledged expert in the field and in his seminal work, The Law of Refugee Status, he makes these observations:-
"The intention of the drafters was not to protect persons against any and all forms of even serious harm, but was rather to restrict refugee recognition to situations in which there was a risk of a type of injury that would be inconsistent with the basic duty of protection owed by the State to its own population. As a holistic reading of the refugee definition demonstrates, the drafters were not concerned to respond to certain forms of harm per se, but were rather motivated to intervene only were the maltreatment anticipated was demonstrative of a break-down of national protection. The existence of past or anticipated suffering alone, therefore, does not make one a refugee, unless the State has failed in relation to some duty to defend its citizenry against the particular form of harm anticipated." (p. 103/4.)
Drawing on these basic precepts, persecution maybe defined as the sustained and systemic violation of basic human rights demonstrative of a failure of State protection. A well-founded fear of persecution exists when one reasonably anticipates that remaining in the country may result in a form of serious harm which the government cannot or will not prevent, ...(p. 104/5.)
...Not all persons who have left their country because of risk to basic human rights are refugees. As noted in the introduction to this chapter, refugee law is designed to interpose the protection of the international community only in situations where there is no reasonable expectation that adequate national protection of core human rights will be forthcoming. Refugee law is therefore "substitute protection" in the sense that it is a response to disfranchisement from the usual benefits of nationality. As Guy Goodwin-Gill puts it, "...the lack of protection normally to be expected of the government is either lacking or denied".
This means that in addition to identifying the human rights potentially at risk in the country of origin, a decision on whether or not an individual faces a risk "persecution" must also comprehend scrutiny of the State's ability and willingness effectively to respond to that risk. Insofar as it is established that meaningful national protection is available to the claimant, a fear of persecution cannot be said to exist. This rule derives from the primary status accorded to the municipal relationship between an individual and her State, and the principle that international human rights law is appropriately invoked only when a State will not or cannot comply with its classical duty to defend the interests of citizenry." (p. 124/5.)
In his book, The Refugee in International Law, Goodwin-Gill writes at p. 67:-
"Fear of persecution and lack of protection are themselves inter-related elements as Article 1(1) of the 1951 Convention makes clear. The persecuted clearly do not enjoy the protection of their country of origin, while evidence of the lack of protection on either the internal or external level may create a presumption as to the likelihood of persecution and to the well-foundedness of any fear."
He has also expressed the view that persecution comprehends "failure (voluntarily or involuntarily) on the part of State authorities to prevent or suppress (private) violence": see (1980), Mitchigan Y.B. Intl. L. Studies 291, 298.
It is obviously desirable that the approach to the interpretation of the Convention should, so far as is possible, be the same in all countries which are signatories, even though this may be an unrealistic expectation in the absence of some supranational court which is capable of giving authoritative interpretations to the provisions which are binding on all signatory countries: see Lord Woolf M.R. in R v A Special Adjudicator ex parte Kerrouche  INLR 88, 92. It is, therefore, instructive to see the approach taken in other jurisdictions.
I look first to the Australian authorities. In Chan Yee Kin v Minister for Immigration and Ethnic Affairs  87 ALR 412 McHugh J., sitting in the High Court of Australia, said at p. 449:-
"The notion of persecution involves selective harassment. ... As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is "being persecuted" for the purposes of the Convention. The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution."
In A v Minister for Immigration  INLR 1 the High Court of Australia was concerned mainly with whether or not the asylum seekers were members of a particular social group and the court was divided on that. Nevertheless some common views were expressed about persecution. Brennan C.J. said at p. 7:-
"Thus the definition of "refugee" must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee's nationality (Canada (Attorney-General) v Ward  INLR 42, 58-59)."
McHugh J said at p. 26:-
"The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution."
Canada (Attorney-General) v Ward  INLR 42 is a judgment of the Supreme Court of Canada. One should not overlook, when reading this authority, that the Canadian statute is structured differently from the Convention in that in Canada the well founded fear must not only be the reason for the claimant's unwillingness to avail himself of the State's protection, but, and this is the difference, it must also be the reason for his inability to do so. That may explain why La Forest J. seems to emphasise at p. 53:-
"The section appears to focus the enquiry on whether there is a 'well-founded fear'. This must be the first point the claimant must establish. All that follows must be by reason of that fear. The first category requires the claimant to be out of the country of nationality by reason of that fear and unable to avail him- or herself of its protection. The second requires that the claimant be both outside the country of nationality and unwilling to avail him- or herself of its protection, by reason of that fear."
There was substantial agreement between the parties that the State's inability to protect was an integral component of the notion of a Convention refugee, but they differed as to the point in the analysis at which such component was to be injected into the definition. La Forest J. continuing the above citation said:-
"Thus, regardless of the category under which the claimant falls, the focus is on establishing whether the fear is 'well-founded'. It is at this stage that the State's inability to protect should be considered. The test is in part objective; if a State is able to protect the claimant, then his or her fear is not, objectively speaking, well-founded. Beyond this point, I see nothing in the text that requires the state to be complicit in, or be the source of, the persecution in question."
When the court was referring to "State complicity", I understand the phrase to connote the notion that the ill-treatment must, as it was expressed at p. 52 B, "emanate from the State" through encouragement or acquiescence. Whilst this may have overtones of the "accountability" theory to which Laws L.J. referred in R v S.S.H.D., ex parte Adan  INLR 362, 376, I note that La Forest J. also cited paragraph 65 of the UNHCR Handbook with apparent approval, saying:-
"The position reflected in the UNHCR Handbook, therefore, is that acts by private citizens, when combined with State inability to protect, constitute 'persecution'." (p. 54.)
That led him to 'conclude' that:-
"persecution under the Convention includes situations where the State is not in strictness an accomplice to the persecution, but is simply unable to protect its citizens," (p. 56.)
In other words, the Canadian court there seems to be ascribing to the "protection" theory.
This summary is also worthy of note for the concluding clause which I have highlighted:-
"In summary, I find the State complicity is not a necessary component of persecution either under the "unwilling" or under the "unable" branch of the definition. A subjective fear of persecution combined with State inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by the requirement that clear and convincing proof of a State's inability to protect must be advanced," (p. 61.)
Finally, I note that the Conseil d' Etat in the matter of Dankha, IJRL/0195 accepted, as I very loosely translate the short summary of the decision available to me, that persecutions carried out by particular individuals, whether organised or not, can be sustained only so long as they are in fact encouraged or voluntarily tolerated by, the public authorities to the extent that the interested party has no effective means of calling upon the protection of the State. Although this may be an example of the accountability theory, the significance for present purposes is at least to show that the role of the State is relevant to the element of persecution.
I also believe that the Court of Appeal of the Ninth Circuit in the United States of America have interpreted the likelihood of persecution to include persecution by the government or by a group which the government is unable to control: see MacMullen v Immigration and Naturalisation Service 658F 2d 1312 (9 Cir 1981) 1315, as reported in Ward at p.55.
A well-founded fear.
The law is settled by Reg. v Home Secretary, ex parte Sivakumaran  1 A.C. 958. In dealing with what has to be proved, Lord Keith of Kinkel said at p. 993:-
"The question is what might happen if he were to return to the country of his nationality. He fears that he might be persecuted there. Whether that might happen can only be determined by examining the actual state of affairs in that country. If that examination shows that the persecution might indeed take place then the fear is well founded. Otherwise it is not."
Lord Templeman explained at p. 996:-
"My Lords, in order for a "fear" of "persecution" to be "well-founded" there must exist a danger that if the claimant for refugee status is returned to his country of origin he will meet with persecution. ... Danger from persecution is obviously a matter of degree and judgment."
On the question of the standard to which that had to be established, Lord Keith's opinion was expressed at p. 994 as follows:-
"In my opinion the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country. In Reg. v Governor of Pentonville Prison, ex parte Fernandez  1 WLR 987, this house had to construe section 4(1)(c) of the Fugitive Offenders Act 1967, which requires that a person shall not be returned under the Act if it appears
"that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinion."
Lord Diplock said, at p. 994:
"My Lords, bearing in mind the relative gravity of the consequences of the court's expectation being falsified in one way or in the other, I do not think that the test of the applicability of paragraph (c) is that the court must be satisfied that it is more likely than not that a fugitive will be detained or restricted if he is returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the Magistrate or with the alternative way in which it was expressed by the Divisional court. "A reasonable chance," "substantial grounds for thinking," "a serious possibility" - I see no significance difference between these various ways of describing the degree of likelihood of the detention or restriction of the fugitive on his return which justifies the court in giving effect to the provisions of section 4(1)(c)."
I consider that this passage appropriately expresses the degree of likelihood to be satisfied in order that a fear of persecution may be well-founded."
In Adan Lord Lloyd dealt with his second category of refugee which includes a person who (a) is outside the country of his nationality owing to a well-founded fear of persecution and (b) is unwilling, owing to such fear, to avail himself of the protection of that country. He said at p. 305:-
" "Owing to such fear" in (b) means owing to a well-founded fear of being persecuted for a Convention reason. But "fear" in (b) can only refer to current fear, since the fear must be the cause of the asylum-seeker being unwilling now to avail himself of the protection of his country. If fear in (b) is confined to current fear, it would be odd if "owing to well-founded fear" in (a) were not also confined to current fear. The word must surely bear the same meaning in both halves of the sentence."
On the question of whether or not State protection is a material factor in the consideration of the well-foundedness of the fear, I have already referred to the Canadian court's approach in Ward. That has been followed by the Federal Court of Appeal in Australia in Minister for Immigration and Multicultural Affairs v Prathapan  156 ALR 672, 677 where Lindgren J. said:-
"According to the terms of the definition, the person's well-founded fear of persecution for a Convention reason has two roles to play: it must be the cause of the person's being outside his or her country of nationality and it must be the cause of any unwillingness on the part of that person to resort to that country's protection. If protection is available from the country of nationality, fear of persecution is not well-founded. In those circumstances, the person would be unwilling to take advantage of the protection of the country of nationality "owing to" some other cause than a well-founded fear of persecution. It will be necessary, however, in due course, to consider the meaning "protection" in the present context. Unlike "unwillingness", "inability" to resort to the protection of the country of nationality is not, by the terms of the definition, required to arise from a well-founded fear of persecution. …
But in effect the two categories ("unable" and "unwilling owing to a well-founded fear of persecution") are directed to broadly similar sets of circumstances. They are situations in which the person cannot be blamed for not following the course, ordinarily to be expected, of relying on the country of nationality for protection."
Conclusions on the first issues.
"Refugee claims were never meant to allow a claimant to seek out better protection than that from which he or she benefits already."
Returning to the facts of this case, and assuming for the moment that persecution is constituted by the actions of the skin heads, then, as the Immigration Appeal Tribunal found, the appellant's fear of persecution was well-founded. Their finding was:-
"24. ... We accept that what the appellant has said with regard to the general situation in respect of Roma in Slovakia is correct. We believe that his subjective fears of what may await him if he is to return to Slovakia could well be genuine and, subject to any changes in Slovakia subsequent to the recent elections, we believe that they are well-founded."
Their caveat about changes in Slovakia is important when reviewing the judgment as a whole and paragraph 61(a) in particular. Their conclusion, as I read it, is that international pressure is likely to lead to improvements in the human rights situation for the Roma and "the situation therefore is today quite different". The next sentence is also significant for an overall understanding of the judgment, namely:-
"25. Whether they are fears of persecution or of something less than persecution is of course a fundamental question to which we shall return later in this determination. ..."
When they did return to the distinction, they found at paragraph 60 that his fear was not that of persecution.
"If we are returned to Slovakia, I am afraid that I will be again persecuted by the skin heads because I am a gypsy. I cannot get protection from the police who don't care at all about our problems."
I would conclude that he was unwilling to avail himself of police protection because it would not prevent his again being persecuted by the skin heads. On that analysis, his appeal should succeed if the underlying assumption that ill-treatment by the gypsies can amount to persecution.
(a) They are wide words. The Oxford English Dictionary defines "avail of" as "a. to benefit oneself or profit by; to take advantage of, turn to account. b. to make use of, use, employ." Accordingly I understand the expression to mean more than turning to the authorities for special protection but rather merely having to make do with the protection that is actually on offer. A narrow application would only seem to be appropriate where an individual is being singled out for ill-treatment for special reason, e.g. the sort of reprisal which Ward feared from the INLA.
(b) I do not see how my Lord's test works in practice. The fact that the asylum-seeker had not been singled out and threatened with reprisals if he were to seek protection, does not make his fear of ill-treatment less well-founded. If he is to be put on the next aeroplane and returned home, how and when is he to seek protection? At the airport on arrival, or at his home village? This will hardly avail him if he is pulled off the bus and beaten before he gets home. And why should the relevant fear be of reprisal? The skinheads who beat him up may not even know that he has asked for special protection. To them he is just another gypsy in need of a beating. As La Forest J. more eloquently expressed it in Ward at p. 60:-
"Moreover, it would seem to defeat the purpose of international protection if a claimant would be required to risk his or her life seeking ineffective protection of a State, merely to demonstrate that ineffectiveness."
"In my judgment, the issue whether a person or group of people have a "well-founded fear (i.e. a real risk - see ex parte Sivakumaran) of being persecuted for (Convention) reasons" - ... raises a single composite question. It is, as it seems to me, unhelpful and potentially misleading to try to reach separate conclusions as to whether certain conduct amounts to persecution, and as to what reasons underlie it. Rather the question whether someone is at risk of persecution for a Convention reason should be looked at in the round and all the relevant circumstances brought into account. I know of no authority inconsistent with such an approach and, to my mind, it clearly accords both with paragraph 51 of the UNHCR handbook and with the spirit of the Convention."
10. Applying my conclusions to the judgment of the Immigration Appeal Tribunal I find they did not misdirect themselves but on the contrary were correct when they held as follows:-
"53. Acts by private citizens when combined with State inability to protect, may constitute "persecution". But it is the failure of the State to provide protection which in our view converts the discriminatory acts into persecution ...
55. ... it is evidence of State failure to protect which in out opinion transforms discriminatory acts into persecutory ones.
60. It is our view that his fear" (I interpolate - his fear of the gypsies' ill-treatment) "is not that of persecution.
61(b). ... our reading of the literature, although troublesome, does not bring us to the conclusion that the discrimination combined with the violence, together and accumulated, can amount to persecution."
The appeal on this ground fails accordingly.
When does a denial of Human Rights amount to persecution?
As Lord Templeman said of the well-foundedness of the fear, this is a matter of degree and of judgment. This is demonstrated by Shah. Lord Hope of Craighead said at p. 1083:-
"But persecution is not the same thing as discrimination. Discrimination involves the making of unfair or unjust distinctions to the disadvantage of one group or class of people as compared with others. It may lead to persecution or it may not. And the persons may be persecuted who have not been discriminated against. If so, they are simply persons who are being persecuted."
Lord Millet said at p. 1041:-
"The denial of human rights, however, is not the same as persecution, which involves the infliction of serious harm. The 1951 Convention was concerned to afford refuge to the victims of certain kinds of discriminatory persecution, but it was directed to prohibit discrimination as such nor to grant refuge to the victims of discrimination. Moreover, while the delegates in Geneva were willing to extend refugee status to the victims of discriminatory persecution, they were unwilling to define the grounds of persecution which would qualify for refugee status as widely as the discriminatory denial of human rights condemned by the Universal Declaration. Discriminatory persecution "of any kind" would not suffice; the Convention grounds are defining, not merely illustrative as in the Universal Declaration."
In an attempt to classify the gravity of the breaches of the human rights, Hathaway proposed the helpful division into four categories. That classification is useful but not definitive and it should be applied with care given to an evaluation of the facts of the case. Although we did not hear full argument on the point, my preliminary view is that breach of third category rights cannot be said as a matter of law to amount to persecution just as it cannot be said as a matter of law that breach of these rights could never amount to persecution. It is a matter of fact and degree and judgment in the individual case. The Tribunal did not err in law in their approach to this part of their consideration and their assessment of the lack of gravity and seriousness of the breaches was a matter well within their competence and their conclusions are unappealable. I agree with Stuart-Smith L.J. that the appeal relating to the breach of human rights should be dismissed for the reasons he gives.
What level of State protection is required?
The Tribunal asked themselves: "Is there in place in the country a sufficiency of protection?" They took that as their test because that was the common ground accepted by both counsel and they cannot be criticised for adopting it. Stuart-Smith L.J. has already set out their direction in paragraph 21 of his judgment and I need not repeat it. I agree with my Lord's conclusions expressed in paragraph 22 of his judgment. What is required is a discernible system of criminal justice. State protection can be sufficient even if it is not fully effective because safety can never be guaranteed. Yet again it is a matter of fact and degree. The more serious the ill-treatment the higher the level of protection that would come to be expected of the State and conversely, of course, the less serious the degree of physical harm, the less rigorous is the need for protection. A criminal justice system must be in place but the receiving State is not obliged to give succour to every asylum-seeker simply because that system may fail to prevent harm befalling him: it will be sufficient if the system in place is one which ordinarily would deter the wrongdoer. At the fulcrum of the balance which has to be struck is the sharp point of principle made by Professor Hathaway at p. 108:-
"The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard."
To what standard and how must persecution be established?
Persecution is such an affront to human dignity that international law places the obligation on contracting States to give refuge to the persecuted. That demand undoubtedly creates some tension. On the one hand the humanitarian aim is to save the refugee from that persecution: we are required to be good Samaritans. There is always a need for "anxious scrutiny" in asylum cases: see Reg. v Secretary of State for the Home Department, ex parte Bugdaycay  AC 514, 531. On the other hand, since persecution involves direct State activity or non-State activity which the State is unwilling or unable to prevent, then, if only as a matter of international comity, one State will not lightly find that another has been directly or indirectly implicated in acts of persecution. As La Forest J. said in Ward at p. 61 :-
"Security of nationals is, after all, the essence of Sovereignty. ... it should be assumed that the State is capable of protecting a claimant.
Clear and convincing proof of a State's inability to protect must be advanced."
Thus I agree with Nolan J in Jonah, and find it timely in a case like this to emphasise, that:-
"...considerations of policy may require a stringent test to be adopted if this country is not to be flooded with those claiming political asylum."
The stringency of that test is met by adopting the view in the Joint Position adopted by the Council of Ministers in Brussels on 4th March 1996 that:-
"However, it is generally agreed that, in order to constitute "persecution" within the meaning of Article 1A, acts suffered or feared must:
- be sufficiently serious, by their nature or their repetition: they must either constitute a basic attack on human rights, for example, life, freedom or physical integrity or, in the light of all the facts of the case, manifestly preclude the person who has suffered them from continuing to live in his country of origin".
Thus the threshold for establishing persecution is set high. Anything short of a really serious flouting of the citizen's human rights and dignities will not do. Adjudicators and Appeal Tribunals should not flinch from applying a strict test.
That is the stringent standard set for a finding of persecution. It is, however, necessary to be more accurate. The real finding has to be of a fear of persecution which is well-founded. The question then is to what standard and how is that fear to be established. This has not been fully argued before us and so my views are tentative. I agree with Stuart-Smith L.J. that there must be a factual basis for all the findings that are necessary. Facts are proved on a balance of probability. Though the fear has to be a current fear presently held, it is actually a fear of events which are prospective and lie in the future. Proof depends upon the reasonable likelihood of the fear coming to pass as has been explained in Sivakumaran. To close the circle, there has to be a reasonable likelihood of the occurrence of acts of such seriousness as to be capable of amounting to the grave offence of persecution. There must be some factual basis from which an assessment of the risk can be made and those facts, importantly the historical facts of what actually happened to the asylum-seeker, are proved on the balance of probability. Once those findings are made, for my part I see no conceptual difficulty in then assessing whether there is a reasonable degree of likelihood that harm, so serious as to amount to persecution, may befall him.
The other grounds of appeal
I am in agreement with Stuart-Smith L.J. that no sufficient ground of appeal has been established. I agree that under the spotlight of fine analysis, some criticism can be made of uncharacteristic infelicities in the language and some lack of clarity in expressing separate conclusions at the different stages of the analysis. Having read, and re-read, the judgment with care - for its consequences are serious for the applicant - I cannot find that the Tribunal misdirected themselves or erred in principle or, when it came to making their findings of fact and their value judgments, exceeded the generous ambit within which there is room for reasonable disagreement.
The structure of the judgment as I read it amounts to this:-
1. Persecution requires State action or State inaction as I have already explained these concepts.
2. Whilst the actions of the gypsies towards the applicant gave him a well-founded fear that he would suffer ill-treatment at their hands, that was not enough by itself.
3. The breaches of human rights did not by themselves amount to persecution.
4. The acts of discrimination and breach of third category rights and the manifestations of violence had to be looked at cumulatively and as a whole.
5. The violent attacks were on the whole isolated and random attacks by thugs which occurred notwithstanding some arrests and prosecutions. The implicit finding is that the State protection had reached the required level of sufficiency. With the change of government, improvements were likely.
6. The appellant fell "below the high threshold ... required for international protection in a case where the fear is of an accumulation of discriminatory acts and where it is alleged that there is not a sufficiency of protection from non-State agents".
7. "His fear is not that of persecution."
8. "Our reading of the literature, although troublesome, does not bring us to the conclusion that the discrimination combined with the violence, together and accumulated can amount to persecution."
In my judgment the Tribunal correctly directed itself on matters of law and their findings of fact and their assessments of the weight of evidence were not perverse. Consequently, although I have approached the case in a different way from my Lord, I agree with him that the appeal should be dismissed.
LADY JUSTICE HALE:
' . . . 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; . . . '
This is a matter of some practical importance for asylum seekers, for the Secretary of State, and for adjudicators and the tribunal. With great diffidence, therefore, I feel it appropriate to set out my own approach, which is closer to that of Lord Justice Ward. In summary, my view is that the sufficiency or insufficiency of state protection against the acts of others may be relevant at three points in the argument: if it is sufficient, the applicant's fear of persecution by others will not be 'well founded'; if it is insufficient, it may turn the acts of others into persecution for a Convention reason; in particular it may supply the discriminatory element in the persecution meted out by others; again if it is insufficient, it may be the reason why the applicant is unable, or if it amounts to persecution unwilling, to avail himself of the protection of his home state.
'In my opinion the concept of discrimination in matters affecting fundamental rights and freedoms is central to an understanding of the Convention. It is concerned not with all cases of persecution, but with persecution which is based on discrimination.'
' . . . includes the important class of those who are sometimes called "third party refugees", ie those who are subject to persecution by factions within the state. If the state in question can make protection available to such persons, there is not reason why they should qualify for refugee status. They would have satisfied the fear test, but not the protection test. Why should another country offer asylum to such persons when they can avail themselves of the protection of their own country? But if, for whatever reason, the state in question is unable to afford protection against factions within the state, then the qualifications for refugee status are complete. Both tests would be satisfied.' (Emphasis supplied.)
Laws LJ, giving the judgment of the court in the later case, continued (at p 377):
'This accords with other jurisprudence in the English jurisdiction. Our courts recognise persecution by non-State agents for the purposes of the Convention in any case where the State is unwilling or unable to provide protection against it, and indeed whether or not there exist competent or effective governmental or state authorities in the country in question. This is what is called the protection theory. It is, as we have said, shared by a majority of the States signatory to the Convention and the UNHCR.'
'The real question is not whether the State authorities are doing the best they can in all the circumstances, but whether viewed objectively the domestic protection offered by or available from the State to the appellant is or is not reasonably likely to prevent persecution from, in this case, the GIA . . .'
'In looking at the sources of protection in Poland today we are of the view that there is a sufficiency of protection. Accordingly, the appellants do not require international protection from any fear they may have of persecution. Their fears are not well- founded.'
The role of the state may be relevant in that way. But it does not follow that this is the only place at which it is relevant, still less that the duty of surrogate protection arises whenever the state is unable or unwilling to prevent a reasonable likelihood of persecution by others. The case of Canada (Attorney-General) v Ward  INLR 42 is entirely distinguishable. As the Lord Justice Stuart Smith makes clear at paragraph 15 of his judgment, the Canadian statute is drafted in a different way from the Convention itself, and leads to a result which is not necessarily that which was originally intended or which should be applied here.
' . . . the intention of the drafters was not to protect persons against any or all forms of even serious harm, but was rather to restrict refugee recognition to situations in which there was a risk of a type of injury that would be inconsistent with the basic duty of protection owed by a state to its own population. As a holistic reading of the refugee definition demonstrates, the drafters were not concerned to respond to certain forms of harm per se, but were rather motivated to intervene only where the maltreatment anticipated was demonstrative of a breakdown of national protection.'
He continues (at pp 104-105):
'Drawing on these basic precepts, persecution may be defined as the sustained or systemic violation of human rights demonstrative of a failure of state protection.'
The references given in the footnotes to these pages also treat the state's role as part of the concept of persecution.
'In sum, persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognized by the international community.'
'A Jewish shopkeeper is attacked by a gang organised by an Aryan competitor who smash up his shop, beat him up and threaten to do it again if he remains in business. The competitor and his gang are motivated by business rivalry and a desire to settle old personal scores, but they would not have done what they did unless they knew that the authorities would allow them to act with impunity. And the ground upon which they enjoyed impunity was that the victim was a Jew. Is he being persecuted on grounds of race? Again, in my opinion he is. An essential element in the persecution, the failure of the authorities to provide protection, is based upon race.'
'Being unable to avail himself of such protection implies circumstances that are beyond the will of the person concerned. There may, for example, be a state of war, civil war or other grave disturbance, which prevents the country of nationality from extending protection or makes such protection ineffective. Protection by the country of nationality may also have been denied to the applicant. Such denial of protection may confirm or strengthen the applicant's fear of persecution, and may indeed be an element of persecution.' (Emphasis supplied.)
'"Owing to such fear" in (b) means owing to a well-founded fear of being persecuted for a Convention reason. But "fear" in (b) can only refer to current fear, since the fear must be the cause of the asylum seeker being unwilling now to avail himself of the protection of his country. If fear in (b) is confined to current fear, it would be odd if "owing to well founded fear" in (a) were not also confined to current fear. The word must surely bear the same meaning in both halves of the sentence.' (Emphasis supplied.)
'What is the reason for the persecution which the appellants fear? Here it is important to notice that it is made up of two elements. First, there is the threat of violence to Mrs Islam by her husband and his political friends and to Mrs Shah by her husband. This is a personal affair, directed against them as individuals. Secondly, there is the inability or unwillingness of the state to do anything to protect them. There is nothing personal about this. The evidence was that the state would not assist them because they were women. It denied them a protection against violence which it would have given to men. These two elements have to be combined to constitute persecution within the meaning of the Convention. As the Gender Guidelines for the Determination of Asylum claims in the UK (published by the Refugee Women's legal Group in July 1998) succinctly puts it (at p 5): "Persecution = Serious Harm + The Failure of State Protection.'
As Lord Steyn was not addressing himself to this issue, it seems unlikely that he intended his summary of the qualifications of a refugee (at pp 1020 to 1021) to exclude this possibility. Indeed he might be read as including it, first at pp 1021 to 1022:
'It is accepted that each appellant has a well founded fear of persecution in Pakistan if she is returned to that country. The appellants are outside the country of their nationality. And they are unable to avail themselves of the protection of Pakistan. On the contrary, it is an unchallenged fact that the authorities in Pakistan are unwilling to afford protection for women circumstanced as the appellants are. Except for the requirements inherent in the words "persecution for reasons of ... membership of a particular social group" in article 1A(2) all the conditions of that provision are satisfied.'
And later, at p 1028, where he addresses the issue of causation:
' . . . it is plain that the admitted well founded fear of the two women is "for reasons" of their membership of the social group. Given the central feature of state-tolerated and state-sanctioned gender discrimination, the argument that the appellants fear persecution not because of their membership of a social group but because of the hostility of their husbands is unrealistic.' (Emphasis supplied.)
Order: Appeal dismissed; no costs. Leave to appeal to the House of Lords was granted. Order does not form part of approved judgment.