CASES AND COMMENTS
Horvath v. Secretary of State for the
Home Department
House of Lords
6 July 2000
Lord Hope of Craighead: 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
 [2001] 1 AC 489; [2000] 3 WLR 379. Lord Hope of Craighead, Lord Browne-Wilkinson,
Lord Lloyd of Berwick, Lord Clyde, Lord Hobhouse of Woodborough.
International Journal of Refugee Law Vol. 13 No. 1/2
 Oxford University Press 2001. All rights reserved
Cases and Comments 175
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
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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
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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, 1288­1289, 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 UNHCR.
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
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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
Cases and Comments 179
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 case
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
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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. 104­105 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. 70­71 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 UNHCR 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
Cases and Comments 181
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 UNHCR 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
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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
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which we look for our protection. I consider that the Tribunal in this
case applied the right standard when they were considering the evidence.
Conclusion
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.
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] I.N.L.R. 15.
The court unanimously dismissed the appeal. But there was a difference
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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.
305­306 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.
Cases and Comments 185
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 UNHCR 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'
Cases and Comments186
protection which was first developed by Professor Hathaway in The Law
of Refugee Status at pp. 124­128, (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, 20­21:
[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;
Cases and Comments 187
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. v. 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
Cases and Comments188
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.
Cases and Comments 189
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 UNHCR 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.
Cases and Comments190
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. 25­26,
paras. 20­23, 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
Cases and Comments 191
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
Cases and Comments192
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. 103­104).
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,
992­993 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.
The need for asylum and the obligation upon another state to provide it
should then arise where the home state has failed in its duty of protection.
The most obvious case of such failure is where the persecution in any of
its various forms is the direct work of the state or the agents of the state.
In para. 5.1 of the Joint Position 96/196/JHA defined by the Council
of the European Union it is stated that `Persecution is generally the act
of a state organ (central state or federal states, regional or local authorities)
whatever its status in international law, or of parties or organisations
controlling the state.' Such official invasions of rights, whether or not
involving physical violence, may well provide the typical examples of
what may constitute persecution for the purposes of the Convention. But
Cases and Comments 193
as the Joint Position itself recognises, persecution for those purposes may
also occur where the immediate act of persecution is not that of the state
or its agents. In para. 5.2 it is stated:
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. Where the official authorities fail to act, such persecution should
give rise to individual examination of each application for refugee status, in
accordance with national judicial practice, in the light in particular of whether
or not the failure to act was deliberate . . .
Professor Guy S. Goodwin-Gill (The Refugee in International Law, 2nd ed.
(1996) p. 73) observes `Where the state is either unable or unwilling to
satisfy the standard of due diligence in the provision of protection, the
circumstances may equally found an international claim.' The important
consideration here to my mind is that the persecution is encouraged or
permitted by the authorities or they are unable or unwilling to provide
it. Even in cases where the state may not immediately initiate or direct
the acts complained of, its encouragement, permission, toleration or
helpless acceptance of the acts, may constitute a case of persecution.
Thus the acts may be seen as constructively acts by the state and so be
within the kind of acts which the Convention is concerned to cover. It is
suggested that para. 5.2 is not intended to be definitive. But in so far as
it seeks to express the necessary element of state participation, whether
direct or indirect, active or passive, it seems to me to be expressing one
basic ingredient in the concept of persecution for the purposes of the
Convention. In the present case the activities immediately complained of
are the activities not of any agents of the state but of third parties. The
skinheads are a body independent of the state authorities. But if their
oppressive behaviour was encouraged or permitted by the state authorities,
or the state was unable or unwilling to provide protection, a case of
persecution could be made out.
A question arises, and it has been canvassed in some detail in the oral
and written submissions before us, as to the level of protection which is
to be expected of the home state. This was identified by the appellant as
the third of three issues which he set out in his case. Priority was however
given to it in the useful written submission which was provided on behalf
of the Refugee Legal Centre, who regarded it as the principal issue in
the appeal. I do not believe that any complete or comprehensive exposition
can be devised which would precisely and comprehensively define the
relevant level of protection. The use of words like `sufficiency' or
`effectiveness', both of which may be seen as relative, does not provide a
precise solution. Certainly no one would be entitled to an absolutely
guaranteed immunity. That would be beyond any realistic practical
Cases and Comments194
expectation. Moreover it is relevant to note that in Osman v. United Kingdom
[1998] 29 E.H.R.R. 245 the European Court of Human Rights recognised
that account should be taken of the operational responsibilities and the
constraints on the provision of police protection and accordingly the
obligation to protect must not be so interpreted as to impose an impossible
or disproportionate burden upon the authorities. At the least, as is noted
in condition (iii) in rule 334 which I have quoted earlier, the person must
be able to show that if he is not granted asylum he would be required
to go to a country where his life and freedom would be threatened. There
must be in place a system of domestic protection and machinery for the
detection, prosecution and punishment of actings contrary to the purposes
which the Convention requires to have protected. More importantly there
must be an ability and a readiness to operate that machinery. But precisely
where the line is drawn beyond that generality is necessarily a matter of
the circumstances of each particular case.
It seems to me that the formulation presented by Stuart-Smith L.J. in
the Court of Appeal may well serve as a useful description of what is
intended, where he said ([2000] I.N.L.R. 15, 26, para. 22):
In my judgment there must be in force in the country in question a criminal
law which makes the violent attacks by the persecutors punishable by sentences
commensurate with the gravity of the crimes. The victims as a class must not
be exempt from the protection of the law. There must be a reasonable willingness
by the law enforcement agencies, that is to say the police and courts, to detect,
prosecute and punish offenders.
And in relation to the matter of unwillingness he pointed out that
inefficiency and incompetence is not the same as unwillingness, that there
may be various sound reasons why criminals may not be brought to
justice, and that the corruption, sympathy or weakness of some individuals
in the system of justice does not mean that the state is unwilling to afford
protection. `It will require cogent evidence that the state which is able to
afford protection is unwilling to do so, especially in the case of a
democracy.' The formulation does not claim to be exhaustive or
comprehensive, but it seems to me to give helpful guidance.
In the present case the tribunal formed the view that there was a
sufficiency of state protection available. On one view of the case that
finding in fact may be seen as conclusive. If the definition is reduced to
its bare bones in the terms of requiring that the person be exposed to a
reasonable risk of a violation of his Convention rights with an inadequacy
of state protection the appellant must fail. But the analysis of the definition
which has been explored in the present case has been more sophisticated.
What has given rise to debate, and to the difference of opinion in the
Court of Appeal, is the precise stage or stages at which in the course of
the definition the element of state protection ought to be allowed in.
Cases and Comments 195
The debate upon this question opens up a real risk of embarking upon
the kind of precise analysis of the definition which seems to me, at least
if taken to extremes, runs counter to the proper approach to be adopted
to the construction of the Convention. But it is certainly correct to notice
that the definition comprises two parts, both of which require to be
satisfied. The first part requires that the person be outside the country of
his nationality for a particular reason, namely a well-founded fear of
being persecuted for what may be conveniently referred to as a Convention
reason. This part is concerned with the reason why he is outside the
country of his nationality. The second part is concerned with the possibility
of the person availing himself of the protection of that country. It requires,
as an additional requirement, that the person be unable, or owing to the
well-founded fear already mentioned unwilling, to avail himself of that
protection. The second part is thus concerned with the possibility of the
person returning to his own state. Both parts are expressed in the present
tense. Thus, as was held in Adan v Secretary of State for Home Department
[1999] 1 A.C. 293, the well-founded fear must be a current fear, not an
historic one. In that case use was made of the labels of a `fear test' and
a `protection test' as a means of reference to the two respective parts
into which the definition falls. While I would recognise the practical
convenience of the use of labels as a form of reference, I feel that
even that language may possibly colour the approach to the matter of
construction and I would prefer simply to use the expressions `the first
part' and `the second part' of the definition as a means of reference.
So far as the first part is concerned it was laid down in Reg. v Secretary
of State for the Home Department, Ex parte Sivakumaran [1988] A.C. 958 that
the existence of a well-founded fear required the establishment of what
was described by Lord Keith of Kinkel as `a reasonable degree of
likelihood' (p. 994), by Lord Templeman as a `real and substantial danger'
(p. 996) and by Lord Goff of Chieveley as `a real and substantial risk' (p.
1000). These are equivalent expressions and the test, while having a
subjective element, is in that respect objective. In the present case the
tribunal found as matter of fact that the appellant did have a well-founded
fear. The remaining question concerns the object of his fear. The tribunal
found that his fear was not that of persecution. The discussion in
Sivakumaran bears on the construction of the reference to a well-founded
fear. It does not resolve the question as to the constituent elements of
`persecution.'
I have much sympathy with the view expressed by Simon Brown L.J.
in Ravichandran v. Secretary of State for the Home Department [1996] Imm. A.R.
97, 109 that `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.' But in identifying the precise point
of dispute in the present case it is necessary to isolate what is and what
Cases and Comments196
is not relevant. We are not immediately concerned with problems about
the standard of proof. The consideration which was given to that issue
in the Court of Appeal in the present case, and more recently in Karanakaran
v. Secretary of State for the Home Department (25 January 2000), is not of
immediate relevance to the present case and I shall say nothing about it.
Nor are we concerned in this case with the nature or the quality of the
activities which may or may not be included within the concept of
persecution, or the various ways and means by which persecution may
be inflicted. It appears that the word carries with it some element of
persistence or continuity, to use Professor Hathaway's language (The Law
of Refugee Status, p. 101) it is `sustained or systemic.' But the term is left
undefined so as to include a wide variety of types of behaviour. In relation
to such questions the ordinary use of the word should provide sufficient
guidance and its application will be a matter of the facts and circumstances
of each particular case. There may be little purpose to be served by
looking to such expressions as harassment or oppression which may be
approximately synonymous. There is no doubt in the present case that
the activities upon which the appellant founds are of such a nature and
quality as would enable them to fall within the scope of the term.
Further there is no doubt that the behaviour in question is prompted by
considerations of race so that if there is persecution it is for a Convention
reason. The ill-treatment of which the appellant is afraid is based on his
being a Roma and the violation of his rights which he fears is on the
ground of his race.
The particular question which is raised in the present appeal is whether
the word `persecution' requires to take account of the attitude of the state
to the violence which the appellant fears. The appellant contends that
persecution comprises simply the acts of violence in question and no
account should be taken of what the state is doing or can do about them.
A failure by the state to protect is then irrelevant. On this approach it
may become easier for him to satisfy the first part of the definition. If
considerations of the availability of state protection are excluded from
the definition of `protection,' it is sufficient for him to show that despite
such efforts at protection as there may be there is a reasonable risk of
his suffering an abuse of his rights. In other words it is enough for him
to show that there is a reasonable risk both that he will suffer abuse and
that he will not be protected from such abuse. On this approach it would
appear that the level of state protection has to be such as to exclude any
real risk of an abuse of Convention rights occurring. Indeed in the
formulation put forward by the Refugee Legal Centre it was suggested
that the protection should be such as to so reduce the risk to the applicant
that his fear of persecution could not be said to be well-founded.
The issue which the appellant put at the forefront of his case, and
which was referred to as the first issue, accordingly was whether the
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matter of the protection afforded by the state is or is not a relevant
ingredient in the concept of persecution. On this question the tribunal
considered that it was relevant. Stuart-Smith L.J. took the view that
persecution meant ill treatment pure and simple without any account
taken of the state protection. The majority of the Court of Appeal took
the opposite view. I consider that the majority were correct.
It may seem at first sight attractive to analyse the definition into the
two parts and see protection as belonging to the second part and not to
the first part. Here particularly the use of the label of the `protection test'
as applicable to the second part may prove dangerous. While the appellant
argued that the element of protection had no part to play in the definition
of persecution, he did accept that protection was relevant to the concept
of a well-founded fear. But that admits that the element of protection
may stray across from the second part of the definition to the first. Stuart-
Smith L.J. took a more consistent approach in completely denying the
admissibility of considerations of protection to the first part and admitting
them only into the second. That appears to accord with the observation
made by my noble and learned friend Lord Lloyd of Berwick in Adan (at
p. 306A) where he envisaged that persons could satisfy the fear test,
without regard to matters of protection, but not the protection test. If
the second part truly was a comprehensive test about protection then the
suggested label would be appropriate and the logical scheme which
Stuart-Smith L.J. preferred would have the more to commend it. But in
deciding whether a fear of persecution is well-founded it seems to me
that account must be taken of the availability of the forces of the state
to counter the fear. And if that is correct it is no longer possible to confine
the consideration of protection to the so-called `protection test.' For a
fear to be well-founded it seems to me that all the circumstances relating
to the fear have to be taken into account. In assessing the existence of a
real risk of the violation of rights occurring anything which may bear on
the likelihood of the incidence of the violation will be relevant. It is the
applicant's fear which is in issue, and so matters particularly relating to
him will be important. For example his prominence in society or political
life, or anything else which might make him a particular target of
persecution may be relevant. The history of past violations, the extent to
which the applicant has personally been directly affected, either by being
the victim of violence or the recipient of threats of violence, considerations
of geographical location, of all the factors which might stimulate or
facilitate a violation, will be among the circumstances to be taken into
account. As also will factors which may discourage or deter or render a
violation less likely. The political and legal situation in the country should
be taken into account. And among those will be the element of the
protection which the state affords. While state protection may not be the
Cases and Comments198
only factor bearing on the real risk of a violation occurring I do not see
that it can be omitted from the considerations relevant to that issue.
But the critical question is whether considerations of the involvement
of the state enters the definition of `persecution.' Here, as it seems to me,
one comes very close to the kind of detailed dissection of the definition
which I have criticised before. But the argument which was presented
before us makes it necessary to pursue this fine analysis. Of course in the
ordinary use of words and out of the context of the Convention persecution
may well comprise simply acts of ill treatment. But it is in the context of
the Convention that the matter has to be approached. As I have already
observed the context in which the definition occurs, although not expressly
so stated in the terms of the Convention, is that of the protection which
the individual may expect from his or her home state. In that context it
seems to me inevitable that the persecution to which the Convention
refers is a persecution which takes account of the protection available.
Of course where the state is itself through its agents the persecutor, the
question does not require to arise. Active persecution by the state is the
very reverse of protection. In that context it is sufficient to proceed simply
upon dictionary definitions to stress the high standard of oppression which
has to be found, as in Reg. v. Immigration Appeal Tribunal, Ex parte Jonah
[1985] Imm. A.R. 7. So also in Demirkaya v. Secretary of State for the Home
Department [1999] I.N.L.R. 441 where the complaint was of persecution
by agents of the state attention could be concentrated upon the issue of
the gravity of the oppression. It is in the context of persecution by third
parties that the problem of protection becomes more significant.
It is no part of the international scheme that people should qualify as
refugees merely because private persons in their home state seek to
interfere with their rights and freedoms. If there is a sufficiency of
protection available to them in that state, then there should be no
obligation on another state to afford a surrogate protection. The
persecution with which the Convention is concerned is a persecution
which is not countered by a sufficient protection. The responsibility to
protect the citizen which is abrogated in a case of active state persecution
is still relevant in assessing what may be seen as a constructive state
persecution, where the ill-treatment by other citizens is encouraged or
tolerated by the state without direct participation on its own part. Here
the concept of encouragement or toleration on the one hand may be
seen as expressing the same thing as the failure by the state to provide
adequate protection. A toleration which amounts to a constructive
persecution by the state and the failure by the state to provide adequate
protection may be the two sides of the same coin. It may be permissible
to use the language of a failure in protection against the abuse as
equivalent to an encouragement or toleration of the abuse or to an
acquiescence in it.
Cases and Comments 199
This view of what is intended by persecution in the context of the
Convention seems to me to be consistent with the purpose of the
Convention. In addition considerable support can be found for it. In
the Handbook produced by the Office of the United Nations High
Commissioner for Refugees, January 1992, which has the weight of
accumulated practice behind it, it is stated, in para. 65:
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.
While the Joint Position defined by the Council of the European Union
on 4 March 1996 (OJ 1996 L63/2) may only be a statement for purposes
of guidance, and indeed is not so worded as to escape debate upon its
meaning, the passage in para. 5.2 which I have already quoted seems to
me to support the view that the attitude of the state, whether it be one
of action or inaction, is relevant to the concept of persecution.
As regards the academic writers, Professor Hathaway (op.cit. p. 105)
observes `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 government cannot or will not prevent . . .' At p. 127 he
states:
Beyond these acts of commission carried out by entities with which the state is
formally or implicitly linked, persecution may also consist of either the failure
or inability of a government effectively to protect the basic human rights of its
populace.
Geoffrey S. Gilbert, Right of Asylum: A Change of Direction, International and
Comparative Law Quarterly, Vol. 32, 633, 645, under reference to the
Canadian case In the Matter of McMullen 658 F 2nd 1312 (9th Circuit,
1981) states `persecution by a third party where the government offers
no protection because of clandestine support or inability to control is just
as valid.' Professor Goodwin-Gill (The Refugee in International Law, 2nd ed.
(1996), p. 67) states that:
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 also observes (p. 75) in relation to the case of flight from civil war
that `it nevertheless remains for the applicant to show that he or she is
unable to obtain the protection of the state, and to establish the requisite
Convention link.'
As regards case-law, in Sandralingham v. Secretary of State for the Home
Department [1996] Imm. A.R. 97 Staughton L.J. at p. 114 stated that
persecution is `persistent and serious ill-treatment without just cause by
Cases and Comments200
the state, or from which the state can provide protection but chooses not
to do so.' The appellant pointed out that that observation was made in
the context of a case concerned with persecution by the state; but the
observation is expressed in quite general terms. Moreover that point of
distinction cannot be made in respect of Reg. v. Immigration Appeal Tribunal,
Ex parte Shah [1999] 2 A.C. 629, where, at p. 653, Lord Hoffmann noted
the two elements which in that case comprised the persecution which the
appellants feared -- the personal threats of violence to them by, principally,
their husbands, and the inability or unwillingness of the state to protect
them. These two elements had to be combined to constitute persecution
within the meaning of the Convention. He quoted and adopted the
concise formula `Persecution = Serious harm + The Failure of State
Protection.' The appellant sought to find some support for his thesis in
Canada (Attorney-General) v. Ward, 103 D.L.R. (4th) 1. It was there held that
state complicity is not a necessary component of persecution; the inability
of the state to protect may by itself be enough. But in that case the court
was considering a formulation of the definition of refugee which does not
exactly correspond with article 1A(2) and I do not consider that guidance
on this point can safely be taken from it.
The appellant argued that the view of the majority of the Court of
Appeal produced an anomalous result. Counsel referred to a recent
tribunal decision in Kovac v. Secretary of State for the Home Department [15
February 2000] where the tribunal observed that but for that view they
would have treated the issue of the likelihood of protection simply as an
aspect of assessing the real risk of persecution. `Otherwise it seems to us
that one will be returning a refugee to a country in which ex hypothesis
there is a serious risk of persecution.' This apparent difficulty leads one
back to a consideration of the level of protection required for the purposes
of the Convention. If the matter of protection is treated simply as an
aspect of assessing the existence of a real risk of an abuse of rights, asylum
would be granted even although there was, in the way which I have
already sought to describe, a reasonable level of state protection. But that
would be contrary to the basic intention of the Convention. The sufficiency
of state protection is not measured by the existence of a real risk of an
abuse of rights but by the availability of a system for the protection of
the citizen and a reasonable willingness by the state to operate it.
It seems to me that on the contrary the appellant's approach gives rise to
anomaly. If consideration of the state's attitude is excluded from the
definition of persecution and considerations of protection in the first part
are confined to the well-foundedness of the fear, then it would seem that
some cases which ought to justify asylum would be excluded. The
persecution must be for a Convention reason. But it is not difficult to
conceive of cases where a person might be persecuted by other citizens for
reasons of private gain which involve no element of Convention rights.
Cases and Comments 201
If the state was motivated by considerations which were contrary to the
Convention rights to tolerate such activity and deliberately refrain from
protecting the person, such a case would appear not to be covered by the
approach promoted by the appellant. That does not seem to be sound.
I turn finally to what was referred to as the second issue in the appeal.
This relates to the second part of the definition and concerns a point of
construction which was propounded by Stuart-Smith L.J. in the present
case. The second part of the definition comprises two branches, both of
which must be given some content. The first branch is readily understood.
If the state gives him no protection then the person will be unable to
avail himself of the protection of the state. The obvious case is where the
state is itself the persecutor. Other examples may be where the state is
at war, or undergoing some internal disturbance which prevents it
rendering any effective protection. The second branch requires that the
applicant be unwilling owing to the well-founded fear referred to in the
first part to avail himself of the protection of the state. That envisages
that there is some protection available to him. But a careful distinction
is made between cases of inability and unwillingness; in the latter, but
not in the former, the unwillingness must be owing to the well-founded
fear. This provision thus serves to exclude from the definition anyone
who, while he has a well-founded fear of persecution, is unwilling to avail
himself of such state protection as there may be for a reason other than
that fear, such as for example a simple preference to enjoy the economic
advantages of the host state. The focus of the second part is upon the
possibility of the person availing himself of protection from his home
state. It complements the first part and it seems to me that there is
sufficient content in it without further elaboration.
However, the respondent has suggested, following the view of Stuart-
Smith L.J. that content should be found for the second branch of the
second part in the requirement that the unwillingness must be due to a
fear that if the person avails himself of the protection he will be persecuted
for so availing himself. But that unwillingness will not be an unwillingness
which is owing to the well-founded fear mentioned in the first part. It
would be an unwillingness owing to a further fear, namely of persecution
for seeking state protection. The reference to `such fear' is a reference to
the whole fear described in the first part. That is not just a well-founded
fear, but a well-founded fear of persecution on a Convention ground.
The purpose of the reference is to require that the fear be of such
persecution, as well of course as having the quality of being well-founded.
I would dismiss the appeal.
Lord Hobhouse of Woodborough: My Lords, I agree with my noble
and learned friend Lord Hope of Craighead and for the reasons which
he has given that this appeal should be dismissed.