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LORD BROWNE-WILKINSON

My Lords,

    I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Hope of Craighead and Lord Clyde. I agree with them and for the reasons which they give I would dismiss the appeal.

LORD LLOYD OF BERWICK

My Lords,

    The appellant, Milan Horvath, is a citizen of Slovakia, and a member of the Roma community. He arrived in this country on 15 October 1997, together with his wife and child. He claimed asylum on the ground that he and his family, together with other gypsies in their neighbourhood, were being persecuted by skinheads.

    The appellant's application for asylum was rejected by the Secretary of State. There was an appeal to a Special Adjudicator. The Adjudicator heard the case on 26 March 1998. He found against the appellant on the ground that he was not a credible witness. In the adjudicator's view the appellant and his family had come to the United Kingdom, not by reason of any fear of persecution, but in order to improve their economic circumstances.

    The Immigration Appeal Tribunal, consisting of His Honour Judge Pearl and two other legally qualified members, found that the appellant's account of the facts was consistent with other evidence relating to the position of gypsies in Slovakia. So they reversed the Adjudicator's conclusion on credibility. But they went on to find that the appellant had failed to discharge the burden of proving that he was unable or unwilling, through fear of persecution, to avail himself of the protection of the state of Slovakia. So they dismissed his appeal.

    There was then an appeal to the Court of Appeal [2000] 1 N.L.R. 15. The court unanimously dismissed the appeal. But there was a difference of opinion between the members of the court as to the right approach to article 1A(2) of the Geneva Convention relating to the Status of Refugees (1951) (Cmd. 9171), and in particular whether the absence of state protection is a necessary ingredient in the definition of persecution.

    Article 1A(2) provides as follows:

"For the purposes of the present Convention, the term 'refugee' shall apply to any person who . . . owing to 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 . . ."

In Adan v. Secretary of State for the Home Department [1999] 1 A.C. 293 one of the questions for decision was whether an applicant for asylum has to show a present well-founded fear of persecution, or whether it is enough that he had a well-founded fear when he left his country of origin. In answering that question in favour of the former view, I found it convenient to regard article 1A(2) as comprising two separate tests - the "fear" test and the "protection" test. For it had been argued on behalf of the applicant in that case that if the fear test were confined to present fear, then the protection test would be otiose. An applicant with a present fear of persecution would always be unable or unwilling, owing to such fear, to avail himself of the protection of his country. In order, therefore, to give the protection test some effect, it was said to be necessary to enlarge the scope of the fear test so as to include historic fear as well as present fear.

    But as I pointed out in the Adan case, that argument was based on a misunderstanding. It assumed that in every case persecution is by the state. It is now well established that that is not so. Persecution by groups or factions within a state may qualify the victim for refugee status, provided the other requirements of article 1A(2) are satisfied. At pp. 305-306 I said:

"If category (1) [i.e. 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] were confined to refugees who are subject to state persecution, then I can well see that such persons would, ex hypothesi, be unable to avail themselves of state protection. On that view the words would indeed serve no purpose. 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. Both tests would be satisfied."

    I accept of course that in the end there is only one question, namely, whether the applicant has brought himself within the definition of refugee in article 1A(2) of the Convention. But in order to answer that question, I held that it was permissible as a matter of language, and helpful as a matter of analysis, to divide the question into two. If the applicant fails to show that he has a well-founded fear of "persecution" according to the ordinary meaning of that word, then the question whether he is unable or unwilling to avail himself of the protection of his country of origin does not arise.

    In the Court of Appeal it was common ground between the parties that the question of state protection has nothing to do with whether what the applicant fears is "persecution" within the meaning of article 1A(2) of the Convention. In principle this must be right. For it has been settled law since the decision of Nolan J. in Reg. v. Immigration Appeal Tribunal, Ex parte Jonah [1985] Imm. A.R. 7, 13 that persecution should be given its ordinary dictionary meaning. So far as I know the correctness of that decision has not been challenged. Indeed, in the course of his argument before your Lordships' counsel for the Secretary of State conceded that the ordinary meaning of the word persecution does not involve a failure of state protection. But he submitted that in the present context the word bears a different, and more limited, meaning.

    For my own part I can find nothing in the immediate context which colours the meaning of the word. As for the wider context, article 33(1) provides:

"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

This is the converse of article 1A(2). Although it is generally accepted that persecution is not confined to threats to life or freedom, there is nothing in article 33 to suggest that "persecution" in article 1A(2) bears anything other than its ordinary meaning. Nor is there any hint that the failure of state protection is an ingredient in the meaning of the word.

    To the same effect is the U.N.H.C.R. Handbook, paragraph 51:

"There is no universally accepted definition of 'persecution,' and various attempts to formulate such a definition have met with little success. From article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights - for the same reasons - would also constitute persecution."

    As for the purpose or purposes underlying the Convention, we were not referred to anything in the travaux préparatoires which throws any light on the question. I agree that the idea of "substitute" or "surrogate" protection which was first developed by Professor Hathaway in The Law of Refugee Status at pp. 124-128, (and which I gratefully adopted in the passage which I have already quoted from my speech in the Adan case), is a useful concept. It describes one of the conditions for refugee status. But I am unable to see how it helps on the definition of persecution. Thus the principle of surrogate protection finds its proper place in the second half of article 1A(2). If there is a failure of protection by the country of origin, the applicant will be unable to avail himself of that country's protection. But I can see no reason, let alone any need, to introduce the idea into the first half of the clause. Indeed, to do so could only lead to unnecessary complications.

    Take two countries each of which has a similar mix of skinheads and gypsies. Assume that the degree of violence is greater in one country than the other, but that the degree of protection is less. How is the fact-finding tribunal to balance these factors in determining whether the violence amounts to persecution? It is the severity and persistence of the means adopted, whether by the state itself, or factions within the state, which turns discrimination into persecution; not the absence of state protection. It is surely simpler, and therefore better from every point of view, not least that of an appellate court considering an appeal on a question of law, that the fact-finding tribunal should first assess the ill-treatment, and answer the question whether it amounts to persecution for a Convention reason, and then, as a separate question, evaluate the protection available to the applicant. I can see no advantage in running these two questions together.

    It follows that I agree with Mr. Plender's submission that the absence of state protection is not a relevant ingredient in the definition of persecution. To adopt a phrase used in a different context by La Forest J. in Canada (Attorney-General) v. Ward (1993) 103 D.L.R. (4th) 1, 20: "There is . . . no need for a judicial gloss." It follows also that I agree with every word of the following passage from the judgment of Stuart-Smith L.J. [2000] I.N.L.R. 15, 20-21:

"[10] It is apparent that there are five conditions that the applicant must satisfy to establish his status as a refugee, namely that:

(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.

"[11] These are separate and discrete tests each of which must be satisfied. Logic and convenience suggest that the fact-finding tribunal should address each question sequentially. Some issues may not be in dispute; equally in some cases there may be a short and obvious answer to the application on one particular ground. But I can see no reason or advantage in importing into the consideration of one issue, matters which logically fall to be considered under another. On the contrary it seems to me to be likely to lead to confusion. Thus as a matter of principle consideration of the question whether the applicant has shown that he is unable, or through fear of the persecution is unwilling to avail himself of the state's protection, which in turn involves a consideration of the state's ability and willingness to afford protection - which I will call the protection test - properly concerns the fifth test and should not be confused with the first three questions, which can broadly together be described as the 'fear test'.

"[12] Again as a matter of principle it seems to me that the protection test has nothing to do with the second question, namely whether the ill-treatment which the applicant has suffered and fears in the future amounts to persecution. It is now well established that the word 'persecution' is to be given its ordinary dictionary meaning of 'to pursue with malignancy or injurious action especially to oppress for holding a heretical belief (see per Nolan J. in Reg. Immigration Appeal Tribunal, Ex parte Jonah [1985] Imm. A.R. 7, 13). Equally it is well established that the persecution can be at the hands of non-state agents such as neighbours, family (as in Reg. v. Immigration Appeal Tribunal, Ex parte Shah [1999] 2 A.C. 629) or hostile factions (Adan v. Secretary of State for the Home Department [1999] 1 A.C. 293). I see no reason why, if the ill-treatment received at the hands of such perpetrators is of sufficient gravity to amount to persecution, it should cease to have that quality because the state can offer adequate protection against it."

The majority of the Court of Appeal took a different view. Ward L.J. accepted an alternative submission of counsel for the Secretary of State, contrary to his primary submission, that the ability of the state to provide protection is part of what is meant by persecution. The reason for this alternative submission was, no doubt, that it was the approach adopted, wrongly in my view, by the I.A.T. In Ward L.J's view the ability of the state to provide protection comes in as a "necessary ingredient" at every stage of the analysis. He called this the "holistic" approach: p. 47. But apart from helpful references to a number of authorities he does not spell out his reasons for not confining the availability of protection to the "protection test."

    Hale L.J. agreed with Ward L.J. that the state's role in providing protection is relevant to the "conception" of persecution itself. She gave a number of reasons of which the most powerful to my mind is the fifth at p. 57, para. 17.

"If there are thugs about perpetrating serious acts of maltreatment against the population as a whole, but the state offers protection only to some of its citizens, and not to others, in my view those citizens are being persecuted in just the sort of way that merits the surrogate protection of other states under the Convention. But if the failure of state protection were relevant only to the fifth question [i.e. the inability or unwillingness of the applicant to avail himself of the protection of his country], it is difficult to see how the necessary link with discrimination can be made in such cases.

    This is, of course, a variation of the case of the Jewish shopkeeper described by Lord Hoffmann in Reg. v. Immigration Appeal Tribunal, Ex parte Shah [1999] 2 A.C. 629, 654 to which I will return later. I agree with Hale L.J. that the activities of the gang of thugs in her example could not amount to persecution for a Convention reason, since their activities are directed against the population as a whole. But the failure of the state to provide protection to some but not all the victims does not change the nature of those activities; nor could it provide the missing element of discrimination, unless one assumes that the word "persecution" includes partial acquiescence by the state in non-discriminatory persecution by others. But this begs the question.

    To my mind it is most unlikely that the framers of the Convention had any such unusual case in mind, or that they intended to cover what the noble and learned Lord Clyde aptly refers to as "constructive" persecution by the state. If so then it is not for us to create a link between the activities of the thugs and discrimination by the state, so as to extend the scope of the Convention by judicial interpretation, any more than we should limit the meaning of persecution by introducing into the definition of persecution the concept of state protection.

    We were referred to a number of authorities other than Ex parte Jonah and the Adan case. I do not find any of these of much assistance. Ex parte Shah is an important decision on the meaning of "particular social group" in article 1(A)(2). It was decided that women in Pakistan were such a group. Since there was no dispute as to any of the other ingredients in the definition of refugee status, it followed that the applicants qualified as refugees. Counsel for the Secretary of State relied on the passage in Lord Hoffmann's speech [1999] 2 A.C. 629, 653 in which he referred to the two elements which need to be combined to constitute persecution within the meaning of the Convention. He approved a formula taken from Gender Guidelines for the Determination of Asylum Claims in the U.K. (published by the Refugee Woman's Legal Group in July 1998) that "Persecution = Serious Harm + the Failure of State Protection."

    But it was common ground in the Court of Appeal in the present case that Lord Hoffmann's observation was not necessary for his decision in that case, and counsel for the Secretary of State did not seek to persuade us otherwise. I note also that there is no reflection of the same approach in the leading speech of Lord Steyn. For my part I would agree with a formula "Persecution for a Convention Reason + Failure of State Protection = Refugee Status". But I cannot agree the formula as it stands.

    As for the case of the Jewish shopkeeper, the question with which Lord Hoffmann was dealing was whether the shopkeeper was being persecuted on the ground of race, or whether he was being persecuted on the ground that a competitor wanted to drive him out of business. This is, as he pointed out, a question of causation. The example taken by Lord Hoffmann was intended to illustrate the point that questions of causation will often depend on the context in which they arise. The example was not, I think, intended to throw any light on the meaning of the word "persecution."

    Counsel for the Secretary of State also referred to certain passages in chapter 4 of Professor Hathaway's book on Refugee Status. Although the title of that chapter is Persecution, a glance at the contents shows that it is not so limited. The author is as much concerned with the requirements for refugee status, as with the meaning of persecution. This is nowhere clearer than in the quotation at p. 129 from what Professor Hathaway regarded as "a landmark decision" in Rajudeen v. Minister of Employment and Immigration (1985) 55 N.R. 129.

    Counsel also relied strongly on the last sentence of paragraph 65 of the U.N.H.C.R. Handbook which reads:

"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."

I agree that this sentence supports his case. But I note that there is no equivalent sentence in paragraph 51, which is the paragraph dealing specifically with the definition of persecution. The meaning of persecution cannot vary according to whether it applies to state persecution or third party persecution. I suggest that the last sentence of paragraph 65 would be more accurate if it read:

"Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution, and therefore justify a claim for refugee status, if they are knowingly tolerated by the authorities . . ."

    In any event there is a danger in regarding the Handbook as if it had the same force as the Convention itself. In the end it comes back to the language of article 1A(2). Of course one must give full weight to the context, and the purposes which the framers of the Convention had in mind. But even so, I cannot agree with the majority of the Court of Appeal that "persecution" as a word has anything other than its ordinary meaning. On the important issue which divided the Court of Appeal, I would therefore accept Mr. Plender's argument for the appellant as correct.

    Unfortunately, however, it does not get Mr. Plender's clients very far. Assuming in their favour (as Stuart-Smith L.J. was prepared to hold) that they have a well-founded fear of persecution for a Convention reason, and that they thereby satisfied the fear test, they still have to satisfy the protection test. Have they shown that they are unable to avail themselves of the protection of the state of Slovakia? The answer must be no.

    I agree with the test proposed by Stuart-Smith L.J., at pp. 25-26, paras. 20-23, in which the other members of the Court of Appeal concurred. On the findings of the tribunal in paragraphs 60 and 61, we can infer that the authorities in Slovakia are able and willing to provide protection to the required standard, and that gypsies, as a class, are not exempt from that protection. This finding is not, of course, in any way inconsistent with the finding that the applicants had a well-found fear of persecution. As Stuart-Smith L.J. pointed out, there are parts of London or New York where one may indeed have a well-found fear of being attacked in the street. But that does not mean that there is not an efficient police force and an impartial judiciary.

    As for the second part of the protection test, there will not be many cases in which an applicant who is able to avail himself of the protection of his country of origin, will succeed on the ground that he is unwilling to do so. Here the applicant's case, as it appears from his written statement, is that he regards the local police as ineffective and indifferent: see paragraphs, 11, 12 and 19. But he is not the sole judge of that. The test is objective. The tribunal has found as a fact that the available protection satisfies the Convention standard. There are no special circumstances which would enable the applicant to succeed on the second branch of the protection test, having failed on the first. I would dismiss the appeal.

LORD CLYDE

My Lords,

    The appellant is a Roma national of Slovakia. He has claimed asylum in the United Kingdom on the grounds of a fear of violence at the hands of persons known as skinheads who were perpetrating acts of violence against the Roma people. He provided the Immigration Appeal Tribunal with examples of the treatment which members of the Roma minority in Slovakia were receiving from the skinheads, the details of which do not require to be repeated here. He also complained of certain acts of a discriminatory character on the part of the state or its agents, but these were held by the tribunal to be not of sufficient severity to amount to persecution. The factual background to the case is accordingly one of the risk of acts of intimidation and physical violence against the appellant. The question in the appeal is whether he qualifies as a refugee for the purposes of the Geneva Convention relating to the Status of Refugees 1951 as modified by the Protocol of 1967. The point arises in the context of Rule 334 of the Statement of Changes in Immigration Rules (H.C. 395) (1994) which at the relevant time provided the conditions under which an asylum applicant would be granted asylum in the United Kingdom. The conditions included as condition (ii) the requirement that the person be a refugee as defined by the Convention and Protocol. The critical part of the Convention with which we are concerned is the definition of refugees contained in article 1A(2). This refers to a person who

"owing to 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. . . ."

It may be noted that condition (iii) in rule 334 also required that

"refusing his application would result in his being required to go . . . in breach of the Convention and Protocol, to a country in which his life and freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group."

    We are concerned here with the construction of an international convention. The approach to be adopted must be appropriate to that situation. Regard must be given to the purpose of the Convention and the object which it seeks to serve. While the language of the article has to be respected, any pre-occupation with the precise words may fail to meet the broad intent of the Convention and any detailed analysis of its component elements may distract and divert attention from the essential purpose of what is sought to be achieved. As my noble and learned friend Lord Lloyd of Berwick observed in Adan v. Secretary of State for the Home Department [1999] 1 A.C. 293, 305.

"It follows that one is more likely to arrive at the true construction of article 1A(2) by seeking a meaning which makes sense in the light of the Convention as a whole, and the purposes 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."

    The dangers of over-sophistication in the construction and application of the Convention are real and significant. Prolonged debate about the niceties of the language may readily lead to delay in the processing of what in the interests of everyone should be a relatively expeditious process. Of course there may often be difficult points of fact to be resolved and uncertainties in matters of fact which may not immediately be open to a clear answer. But it is obviously undesirable to heap onto the shoulders of the adjudicators and the members of the tribunals who already have a heavy burden of work an additional complexity in the unravelling of legal issues on the precise construction of the particular words used in the Convention.

    The Convention was worked out and agreed between states and it is at a state level that it has to be understood. As its preamble records it is prompted by concern for the enjoyment by refugees of the fundamental rights and freedoms propounded in the Charter of the United Nations and the Universal Declaration of Human Rights of 10 December 1948 (U.N. Doc. A/811) without discrimination. What it seeks to achieve is the preservation of those rights and freedoms for individuals where they are denied them in their own state. Another state is to provide a surrogate protection where protection is not available in the home state. The Convention assumes that every state has the obligation to protect its own nationals. But it recognises that circumstances may occur where that protection may be inadequate. The purpose of the Convention is to secure that a refugee may in the surrogate state enjoy the rights and freedoms to which all are entitled without discrimination and which he cannot enjoy in his own state. It is essentially against the background of that consideration of the protection which the individual may expect from his home state that the definition has to be understood. As Professor Hathaway observes in The Law of Refugee Status (pp. 103-104).

"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 a state to its own population."

The same point was made by Lord Keith of Kinkel in Reg. v. Secretary of State for the Home Department, Ex parte Sivakumaran [1988] 1 A.C. 958, 992-993 where he observed 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 by La Forest J. in Canada (Attorney-General) v. Ward (1993) 103 D.L.R (4th) 1, 12 where he said:

"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 becomes engaged."