House of Lords portcullis
House of Lords
Session 1999-2000
Publications on the Internet

Judgments - Horvath v. Secretary of State For The Home Department


Lord Hope of Craighead Lord Browne-Wilkinson Lord Lloyd of Berwick Lord Clyde Lord Hobhouse of Woodborough








ON 6 JULY 2000


My Lords,

    The appellant is a citizen of the republic of Slovakia. He comes from a village called Palin in the county of Michalovce, where he lived with his wife and child and other members of his family. He and his family are Roma, who are known colloquially as gypsies. The Roma, who are widely distributed across the country, constitute about 10 per cent. of the population of Slovakia. They are a small minority in the village to which the appellant belongs. On 15 October 1997 he arrived in the United Kingdom with his wife and child and claimed asylum. He said that he feared persecution in Slovakia by skinheads, against whom the Slovak police were failing to provide protection for Roma. He also said that, along with other Roma, he had been unable to find work, that he had not been afforded the normal public facilities as to his marriage and schooling for his child and that in these respects he was being discriminated against. He maintained that he was afraid that if he and his family were returned to Slovakia they would again be attacked by skinheads as they were Roma, and that they would not get protection from the police.

    His application for asylum was refused by the Secretary of State. The Special Adjudicator did not find him to be a credible witness and dismissed his appeal. The Immigration Appeal Tribunal found that his assertions of fact were consistent with other evidence which was before them about the position of Roma in Slovakia, so they reversed the Special Adjudicator's finding on credibility. But they concluded that, while he had a well-founded fear of violence by skinheads, this did not amount to persecution because he had not shown that he was unable or, through fear of persecution, unwilling to avail himself of the protection of the state. The Court of Appeal (Stuart-Smith, Ward and Hale LL.J.) dismissed his appeal against the determination of the tribunal: [2000] I.N.L.R. 15.

    The parties are agreed that the issues in this appeal all relate to the proper construction of article 1A(2) of the Geneva Convention relating to the Status of Refugees 1951. The problem to which these issues are directed arises from the fact that the appellant's claim to refugee status is based upon the alleged insufficiency of state protection against persecution by non-state agents. It is not part of his case that he has a well-founded fear of persecution by the state itself or by organs or agents of the state. His claim is based on his fear of violence by skinheads, who are not agents of the state, and on the alleged failure of the state through its police service to provide him with protection against their activities. He also based his claim on discrimination in the field of employment, the right to marry and education, but the tribunal concluded that any abuse of his rights in respect of these matters did not amount to persecution. The Court of Appeal held that the tribunal were fully entitled to reach that conclusion, and there has been no appeal against that part of its decision to this House. Your Lordships are concerned only with the allegation of failure by the state to protect the appellant against the activities of non-state agents.

    Article 1(A)(2) of the Convention (Cmd. 9171), as amended by the New York Protocol of 31 January 1967 (Cmnd. 3906), provides that the term "refugee" shall apply to any person who:

    "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 who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

    The following issues arise in the determination of the question raised by the problem that the parties have identified in regard to the allegation of persecution by non-state agents: (1) does the word "persecution" denote merely sufficiently severe ill-treatment, or does it denote sufficiently severe ill-treatment against which the state fails to afford protection? (2) is a person "unwilling to avail himself of the protection" of the country of his nationality where he is unwilling to do so because of his fear of persecution by non-state agents despite the state's protection against those agents' activities, or must his fear be a fear of being persecuted there for availing himself of the state's protection? (3) what is the test for determining whether there is sufficient protection against persecution in the person's country of origin - is it sufficient, to meet the standard required by the Convention, that there is in that country a system of criminal law which makes violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies? Or must the protection by the state be such that it cannot be said that the person has a well-founded fear?

    These three issues raise questions about the structure of article 1A(2) and about the meaning of words and phrases used in various parts of that article. The point is commonly made in regard to the Convention that it is not right to construe its language with the same precision as one would if it had been an Act of Parliament. The Convention is an international instrument. So, as my noble and learned friend Lord Lloyd of Berwick has observed, its choice of wording must be taken to have been the product of the inevitable process of negotiation and compromise: Adan v. Secretary of State for the Home Department [1999] 1 A.C. 293, 305B-C. And the general rule is that international treaties should, so far as possible, be construed uniformly by the national courts of all states. This point also suggests that the best guide to the meaning of the words used in the Convention is likely to be found by giving them a broad meaning in the light of the purposes which the Convention was designed to serve. It will be necessary to examine the wording of the article. But it may be helpful as a starting point to identify the relevant purpose or purposes.

    It seems to me that the Convention purpose which is of paramount importance for a solution of the problems raised by the present case is that which is to be found in the principle of surrogacy. The general purpose of the Convention is to enable the person who no longer has the benefit of protection against persecution for a Convention reason in his own country to turn for protection to the international community. As Lord Keith of Kinkel observed in Reg.v. Secretary of State for the Home Department, Ex parte Sivakumaran [1988] A.C. 958, 992H-993A, its general purpose is to afford protection and fair treatment to those for whom neither is available in their own country. In Canada (Attorney-General) v. Ward (1993) 103 D.L.R. (4th) 1, 12 La Forest J. 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."

    This purpose has a direct bearing on the meaning that is to be given to the word "persecution" for the purposes of the Convention. As Professor James C. Hathaway, The Law of Refugee Status (Butterworths, 1991) p. 112 has explained, "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 recognised by the international community." At p. 135 he refers to the protection which the Convention provides as "surrogate or substitute protection", which is activated only upon the failure of protection by the home state. On this view the failure of state protection is central to the whole system. It also has a direct bearing on the test that is to be applied in order to answer the question whether the protection against persecution which is available in the country of his nationality is sufficiently lacking to enable the person to obtain protection internationally as a refugee. If the principle of surrogacy is applied, the criterion must be whether the alleged lack of protection is such as to indicate that the home state is unable or unwilling to discharge its duty to establish and operate a system for the protection against persecution of its own nationals.

    Although the matter does not arise for further discussion in this case, it may be worth noting that the literature suggests that states differ in their approach to the problem posed by persecution by non-state agents. As Laws L.J. explained in Reg. v. Secretary of State for the Home Department, Ex parte Adan [1999] 3 W.L.R. 1274, 1288-1289, France and Germany subscribe to the "accountability" theory, which limits the class of case in which a claimant may obtain refugee status to situations where the persecution alleged can be attributed to the state so that the status of refugee is not available, on the German view, where there is no effective state authority or, on the French view, the state authority is unable to provide protection. On the other hand a majority of the contracting states, including the United Kingdom, the United States and Canada, subscribe to the "protection" theory. After referring to Lord Lloyd's explanation of the substance of this theory in Adan v. Secretary of State for the Home Department [1999] 1 A.C. 293, 306B, where he said that the qualifications for refugee status are complete when for whatever reason the state in question is unable to afford protection against factions within the state, Laws L.J. then added this comment at p. 1289D-E:

    "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 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 U.N.H.C.R."

    Fortunately the situation in Slovakia is not such as to give rise to the problems which may arise in other jurisdictions where there is no effective state authority or the state authority is unable to provide protection. The present case is relatively straightforward. The institutions of government are effective and operating in the Republic of Slovakia. The state provides protection to its nationals by respecting the rule of law and it enforces its authority through the provision of a police force. But, as the tribunal said in paragraph 59 of its judgment, there is racial violence against the Roma perpetrated by skinheads. The police do not conduct proper investigation in all cases and there have been cases where their investigation has been very slow. But there was also evidence that the police have intervened to provide protection when they have been asked to do so and that stiff sentences are imposed at times for crimes that are racially motivated. The Tribunal's conclusion was that the violent attacks on Roma are isolated and random attacks by thugs.


The first issue

    In the Court of Appeal there was a difference of view on the question where the alleged insufficiency of state protection against persecution by non-state agents fits in to the definition of "refugee" in article 1A(2) of the Convention. Stuart-Smith L.J. took as his starting point Lord Lloyd's division in Adan v. Secretary of State for the Home Department [1999] 1 A.C. 293, 304C-E of the persons treated by the article as refugees into four categories. The first two categories which Lord Lloyd identified relate to nationals who are outside their country owing to a well-founded fear of persecution for a Convention reason and who are either "unable" to avail themselves of the protection of their country or, owing to such fear, are "unwilling" to do so. Lord Lloyd then drew attention to the fact that in the case of each category two tests had to be satisfied. He described these tests as "the fear test" and "the protection test." Stuart-Smith L.J. said [2000] I.N.L.R. 15, 23G, that he regarded this as a clear statement of principle that the fear test is separate and distinct from the protection test.

    Ward L.J., disagreeing with Stuart-Smith L.J. on this point, said, at p. 47B-C, that in his view a holistic approach had to be taken to the definition of "refugee." The critical question was the stage at which the degree of state protection entered into the analysis. As he put it:

    "The degree of state protection may indirectly be a factor in judging whether the fear is well-founded but this is not the only or best place for it in a proper analysis of the definition of refugee. What state protection is available is a fact to be considered in for the protection test, but the question of state protection is not confined to the 'protection test'."

Hale L.J. also favoured the holistic approach. At p. 52A, she said that her view was that the sufficiency or insufficiency of state protection against the acts of others might 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 amounts to persecution unwilling, to avail himself of the protection of his home state."

    I agree with the view of the majority. For my part, I would regard the analysis of the article which was provided by Lord Lloyd in the Adan as being both helpful and instructive. It is an important reminder that there are indeed two tests that require to be satisfied. A person may satisfy the fear test because he has a well-founded fear of being persecuted, but yet may not be a "refugee" within the meaning of the article because he is unable to satisfy the protection test. But it seems to me that the two tests are nevertheless linked to each other by the concepts which are to be found by looking to the purposes of the Convention. The surrogacy principle which underlies the issue of state protection is at the root of the whole matter. There is no inconsistency between the separation of the definition into two different tests and the fact that each test is founded upon the same principle. I consider that it has a part to play in the application of both tests to the evidence.

    I would hold therefore that, in the context of an allegation of persecution by non-state agents, the word "persecution" implies a failure by the state to make protection available against the ill-treatment or violence which the person suffers at the hands of his persecutors. In a case where the allegation is of persecution by the state or its own agents the problem does not, of course, arise. There is a clear case for surrogate protection by the international community. But in the case of an allegation of persecution by non-state agents the failure of the state to provide the protection is nevertheless an essential element. It provides the bridge between persecution by the state and persecution by non-state agents which is necessary in the interests of the consistency of the whole scheme.

    It is important to note throughout that the humanitarian purposes of the Convention are limited by the tests set out in the article. As Dawson J. observed in A. v. Minister for Immigration and Ethnic Affairs [1998] I.N.L.R.1, 18F-G:

    "No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention. And by incorporating the five Convention reasons the Convention plainly contemplates that there will even be persons fearing persecution who will not be able to gain asylum as refugees."

At p. 19B-C he went on:

    "No doubt many of those limits in the present context spring from the well-accepted fact that international refugee law was meant to serve as a 'substitute' for national protection where the latter was not provided due to discrimination against persons on grounds of their civil and political status. It would therefore be wrong to depart from the demands of language and context by invoking the humanitarian objectives of the Convention without appreciating the limits which the Convention itself places on the achievement of them."

    As Hale L.J. pointed out [2000] I.N.L.R. 15, 59B, it is remarkable that the literature to which reference has been made deals with the role of the state in relation to persecution by non-state agents largely in the context of the definition of persecution rather than in the context of the inability or unwillingness of the applicant to avail himself of its protection. Professor Hathaway, The Law of Refugee Status, makes it plain in his chapter on "Persecution" that in his view the intention of the drafters of the Convention was to restrict refugee status to situations where 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. In the course of his discussion of this concept he says this, at p. 104:

    "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."

At pp. 104-105 he suggests that persecution may be defined as "the sustained or systemic violation of basic human rights demonstrative of a failure of state protection." Guy S. Goodwin-Gill, The Refugee in International Law, (Clarendon Press, 1996), 2nd ed., pp. 70-71 notes that the concept of persecution is not limited to the actions of governments or their agents, and that persecution can result where protection is unavailable because governments are unable to suppress the activities of the perpetrators or unwilling or reluctant to do so or are colluding with those responsible. The link between the acts of violence and failure on the part of the state authorities is also indicated by the paragraph 65 of the U.N.H.C.R. Handbook on Procedures and Criteria for Determining Refugee Status (re-edited Geneva 1992), which states:

    "Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned. A case in point may be religious intolerance, amounting to persecution, in a country otherwise secular, but where sizeable fractions of the population do not respect the religious beliefs of their neighbours. Where serious discriminatory or other offensive acts are committed by the local populace, 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."

    Mr. Plender Q.C. for the appellant accepted that a holistic approach was appropriate when the definition in article 1A(2) was being applied to the facts. As he put it, all the circumstances must be considered in order to see whether the definition is satisfied. But he maintained that it did not follow that circumstances which were relevant to one test were also relevant to the other. He acknowledged that the issue of state protection was relevant to the question whether the applicant's fear of severe ill-treatment for a Convention reason was a well-founded fear. But he did not accept that it was the failure by the state to provide protection that converted severe ill-treatment into persecution. Adopting what Stuart-Smith L.J. said at p. 21G, he submitted that if severe ill-treatment by non-state agents was of sufficient gravity to amount to persecution it did not lose that quality because the state could offer adequate protection against it. He referred to various cases in which consideration had been given to the meaning of the word "persecute": e.g. Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989) 169 C.L.R. 379, 388, per Mason C.J.; Damouni v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 A.L.R. 97, 101, per French J. He also referred to the decision in Canada (Attorney-General) v. Ward (1993) 103 D.L.R. (4th) 1, in which it was held, in case where the persecution which was alleged emanated from a non-state agent, that state complicity in the persecution was not a valid prerequisite to a valid refugee claim. But I would be cautious about drawing conclusions from that case about the approach to be taken to the definition in article 1A(2) in view of the fact that this definition has been reproduced in a different form in section 2(1) of the Canadian Immigration Act 1976 by breaking it down into sub-paragraphs. In any event the fact that, at p. 15, La Forest J. quoted with approval the definition of "persecution" which appears in the U.N.H.C.R. Handbook is a good indication that the point that was of concern to him was whether the complicity of the state was a necessary element. He appears to have been content to accept the point which is relevant to this case, that acts by non-state agents when combined with state inability to protect may constitute persecution.

    To sum up therefore on this issue, I consider that the obligation to afford refugee status arises only if the person's own state is unable or unwilling to discharge its own duty to protect its own nationals. I think that it follows that, in order to satisfy the fear test in a non-state agent case, the applicant for refugee status must show that the persecution which he fears consist of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection. The applicant may have a well-founded fear of threats to his life due to famine or civil war or of isolated acts of violence or ill-treatment for a Convention reason which may be perpetrated against him. But the risk, however severe, and the fear, however well-founded, do not entitle him to the status of a refugee. The Convention has a more limited objective, the limits of which are identified by the list of Convention reasons and by the principle of surrogacy.

    The Tribunal said in paragraph 53 of its judgment that in its view it was the failure of the state to provide protection that converts the discriminatory acts into persecution. On that approach, having considered the evidence, it decided that the appellant fell below the threshold which it believed was required for international protection in a case where the fear was of discriminatory acts and where it was alleged that there was not a sufficiency of protection from non-state agents. In paragraph 60 the Tribunal stated: "It is our view that his fear is not that of persecution." For the reasons which I have given I consider that the Tribunal approached the matter in the right way, by examining the question as to the sufficiency of state protection at the first stage when they were considering whether the appellant's fear was of "persecution" within the meaning of the Convention. In the view of the conclusion which the Tribunal reached as to this part of the definition in article 1A(2), it was unnecessary for it to consider whether the second part of the definition was satisfied. But it is obvious that, as the appellant had failed to show that he had a well-founded fear of being "persecuted" for the purposes of the first part, he would be bound to fail the requirements of the second part also. The words "such fear" in that part assume that the fear which he has is a fear of being "persecuted."

The second and third issues

    I do not think that it necessary for the disposal of this appeal to dwell further on the matters that were discussed in regard to these two remaining issues. As regards the second issue, I wish merely to say that on the view which I have taken about the proper approach to the first issue it loses much of its significance. But it follows from that approach that, if the second part of the definition is to be satisfied, the applicant's fear must be a well-founded fear of being persecuted for availing himself of the state's protection.

    As regards the third issue, the answer to it also is to be found in the principle of surrogacy. The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals. As Ward L.J. said at p. 44G, under reference to Professor Hathaway's observation in his book at p.105, it is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection. I consider that the Tribunal in this case applied the right standard when they were considering the evidence.


    Where the allegation is of persecution by non-state agents, the sufficiency of state protection is relevant to a consideration whether each of the two tests - the "fear" test and the "protection" test - is satisfied. The proper starting point, once the tribunal is satisfied that the applicant has a genuine and well-founded fear of serious violence or ill-treatment for a Convention reason, is to consider whether what he fears is "persecution" within the meaning of the Convention. At that stage the question whether the state is able and willing to afford protection is put directly in issue by a holistic approach to the definition which is based on the principle of surrogacy. I consider that the Tribunal was entitled to hold, on the evidence, that in the appellant's case the requirements of the definition were not satisfied. I would refuse the appeal.