JOSEF KOLLER v AND: [2001] EWCA Civ 1267

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
[2001] EWCA Civ 1267Case No C/2000/1158Venue Royal Courts of Justice, Strand, London WC2, Thursday 26 July 2001
Between
JOSEF KOLLERApplicantAND:THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Before
Lord Justice BrookeLord Justice TuckeyLord Justice LawsMR P JORRO (Instructed by Refugee Legal Centre, 39-45 Bermondsey Street, London SE1) appeared on behalf of the AppellantThe Respondent did not appear and was not representedDate 26 July 2001
[1]Thursday 26 July 2001 LORD JUSTICE BROOKE: This is an application by Josef Koller for permission to appeal against a determination of the Immigration Appeal Tribunal ("the IAT") dated 5 February 2001, whereby it dismissed his appeal against a decision of a Special Adjudicator dated 9 October 2000, who had dismissed his appeal against a refusal by the Secretary of State in a letter dated 15 February 2000 of his application for asylum, which he made on 16 October 1998 when he arrived in this country from Calais accompanied by four dependents.[2]The order of the Immigration Appeal Tribunal refusing permission to appeal was received by those representing the appellant on 18 April 2001. This appeal was not filed in the Court of Appeal office until 25 May 2001. We are told that the reason was that counsel was instructed to prepare the grounds of appeal on 26 April 2001 but he delayed until 24 May 2001 before the grounds were sent to those who have the carriage of the appeal.[3]If the applicant were to be granted permission to appeal this would be his third appeal. The application has been listed before a three-judge court this morning in order that we can consider in the context of immigration appeals certain observations recently made by Hale LJ, with whom Clarke LJ and Butterfield J agreed, in Cooke v Secretary of State for Social Security [2001] EWCA Civ 734 about the criteria for the grant of permission to appeal to this court from decisions taken by appeal tribunals in specialist fields of law.[4]It is first necessary to say something about the facts of the case. Mr Koller is a Roma. He was born in Bratislava in 1965 and is a Czech national with a Czech passport. He married a Roma woman in 1988, and they have three children who are now aged 15, 13 and 12. He has never belonged to any political organisation and never had any trouble with the police until June 1998. He completed an apprenticeship in metalwork and obtained a number of different jobs, but when he tried to apply for better jobs he would be told that he could not have them because he was a gypsy.[5]Early one December morning in 1994 some skinheads in balaclavas tried to obtain admittance to a block of flats where a number of Roma families lived, including his own. His family hid in the loft to avoid being attacked. Six of the skinheads involved in the incident were taken to court and given suspended sentences. In a later incident some skinheads attacked his wife and son, grabbing his wife and calling her names before she succeeded in escaping. Three skinheads also attacked him one day as he returned home and called him names, but he was able to escape.[6]As a general matter, he felt that his family suffered discrimination because they were Romas. For example, when his daughter attended school, her teacher transferred her after three months to a special school, and this slowed down her progress. He sometimes thinks now that she is retarded as a consequence. His brother's wife was once thrown out of a train, and he also felt that the housing accommodation provided for his family was poor because he was a Roma.[7]The most serious event in his life took place in June 1998. As he was returning home from work, he was attacked by two skinheads outside a public house. He defended himself, but when the police came one of the policemen hit him on the back of the head with a cosh. He also insulted him and swore at him. As Mr Koller fell down, he tried to explain that he was the person being attacked by the skinheads. The policeman then kicked him in the face. He was covered in blood and unconscious for a time.[8]The policeman then handcuffed him and put a revolver to his head and took him to the police station. He said the skinheads were friends of this policeman. Once he had arrived at the police station he made it clear that he was going to complain about the policeman's conduct. He was threatened by the police, although he was soon released and allowed to go home. As he had a broken tooth and cuts on his chin and eyebrow he went to receive treatment at the local hospital. He had to take a week's holiday to recover.[9]He then went to see the police because they had not taken a statement from him, but they began to threaten him and swear at him, and told him he had offended them. He ended up in front of a commission which acted as a conciliatory body dealing with minor offences. The police were the complainants and he felt he was being looked on as the guilty party. He appeared there twice, but the police turned up on neither occasion, and nothing therefore happened. He was not punished in any way. He was afraid to pursue his own complaint any further.[10]He was then worried that the police would do something to him, such as run him over in a car. He believed that nothing would happen to the police if they did something like that. He got in touch with a cousin of his, who was an asylum seeker in London, and she advised him to seek asylum here. This is why he came here with his family in October 1998.[11]Those were the facts as recited by the IAT. The tribunal also described the position of Roma in the Czech Republic today. It started by quoting from a Human Rights Watch report which referred to two serious incidents involving attacks by skinheads on Roma families and the leniency of the way in which the court dealt with the matters. Although in the second incident the police eventually charged twelve men with rioting, the United States ambassador of the day publicly criticised the Czech courts for the lenient sentences they passed on those who committed crimes against Roma.[12]The tribunal then referred to other matters mentioned in the reports which were before it. Concern was expressed about police brutality in the same Human Rights Watch report. The tribunal had a March 1998 report by the United Nations committee on the elimination of racial discrimination. This report expressed concern about the persistence of racial hatred and acts of violence effected by skinheads and others towards people belonging to minority groups such as the Roma. An Amnesty International report was to the same effect.[13]The tribunal then referred to the United States State Department report published in February 2000 on human rights practice in the Czech Republic in 1999. This reported that the Czech government generally respected the rights of its citizens, although problems remained in some areas. Occasional police violence remained a problem. In September 1998 a UN Human Rights Commission expert had been appointed Commissioner for Human Rights with specific responsibility for Roma affairs. The report described how Roma suffered disproportionately from poverty, unemployment and inter-ethnic violence, discrimination, illegitimacy and disease. On the other hand, the state funded television and radio programmes from Roma and also supported Roma publications.[14]The report goes on to give statistics of racially motivated attacks in 1998 and in the first six months of 1999. It was estimated that there were between 5,000 and 6,000 skinheads, and the report recorded prosecutions against skinheads and described how the High Court in Prague was upholding the sentences passed by the lower courts. The tribunal said it was quite clear from this report that the Czech police and judiciary were dealing with attacks against Roma. The report went on to detail other steps taken by the Czech government to improve the situation of Roma in the employment, housing and education fields. A bill placed before Parliament would give the Ministry of the Interior power to dissolve extremist organisations such as skinheads.[15]The tribunal concluded that it was quite clear that the Czech state did not tolerate racial discrimination against Roma and was taking steps to integrate Roma into the Czech community. It said it was also clear that the state was taking action to curb the activities of skinheads and that the police were prosecuting those who perpetrated attacks on Roma. A further incentive for the Czech state to take these steps arose from its wish to join the European Union which had made it quite clear that its status would be jeopardised if these attacks continued. The tribunal added that steps were now being taken to integrate Roma children into mainstream education, as Mr Koller would find when he returned to the Czech Republic.[16]These facts were determined by the IAT 27 months after the arrival of the five members of the Koller family in England. The earlier processing of their asylum claim was characterised by institutional delay. Mr Koller was not interviewed until 7 October 1999, nearly a year after he arrived. We have a record of his interview, and he gave an account of his history which the IAT largely repeated in its determination.[17]The application for asylum was refused in February 2000. In the refusal letter the Home Office referred to recent developments in the Czech Republic, some of which were later mentioned by the IAT. On Mr Koller's appeal the special adjudicator gave a carefully structured determination, setting out the introductory matters, describing Mr Koller's written evidence and his oral evidence, summarising the parties' submissions, setting out what were the principles of law, and then making her findings of fact. She was not satisfied by aspects of Mr Koller's credibility. She then considered the United States State report and a UNHCR report. Her principal finding was that the Czech state was able to provide sufficient protection for the appellant and his family to return to the country. In all the circumstances, looking at the evidence in the round, she found that Mr Koller did not have a well-founded fear of persecution for Convention reasons.[18]The IAT granted permission to appeal. The appellant's principle ground of appeal was that the adjudicator made a fundamental error of fact when she found that the appellant was the one who complained to the commission about the police officer, whereas in fact it was the police who complained about the appellant, and it was argued that this vitiated her approach to the matter. The appeal was heard by two legal members of the IAT. After setting out all the facts in the way I have described, their determination concluded at paragraphs 72-75:
"72. The Tribunal is satisfied, from examining the objective evidence, that steps are being taken by the state to deal with the complaints made by Roma and that steps are being taken to control skinheads. 73. It is noteworthy that the incident which allegedly occurred in 1994 did not cause the appellant to leave the Czech Republic. 74. It is also noteworthy that the appellant left after the 1998 incident because it had been suggested by a cousin who was already in the United Kingdom claiming asylum. 75. The Tribunal is satisfied, having looked at the objective evidence, that the appellant did not have at the time he left the Czech Republic a well-founded fear of persecution for a Convention reason. It is also quite clear that there has been a marked improvement in relation to the question of sufficiency of protection during the period in which the appellant has been away from the Czech Republic and he would not have a well-founded fear of persecution if he is returned."
[19]Sedley LJ, when refusing permission on paper, said that:
"The question for the IAT was then whether the evidence brought him within the Convention. Although both they and the [adjudicator] appear determined to direct themselves in law as if Karanakaran had never been decided, no issue of law turns on this in the present case. Indeed I agree with the IAT that, in the light of the evidence and their findings, there is no issue of law; everything turns on what the IAT has made of the totality of the evidence in relation to how well-founded the fear of persecution now is and (closely related) whether state protection from civilian attack is sufficient."
[20]Mr Jorro, in advancing his arguments both in writing and at the hearing today, has relied solely on the ground that it is arguable that there was in 1998 a failure of state protection against non-state persons (namely racist police officers). He argued that Mr Koller's attempts to complain about the conduct of the police officers had got nowhere and that he had been frightened to take them any further. He referred us to the speech of Lord Clyde in Horvath v Home Secretary [2000] 3 WLR 379 at 398C:
"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 law is drawn beyond that generality is necessarily a matter of the circumstances in each particular case."
[21]He then showed us two Court of Appeal authorities, Banomova v Secretary of State for the Home Department [2001] EWCA Civ 807 and Harakel v Secretary of State for the Home Department [2001] EWCA Civ 884 . In my judgment those really take the matter no further. It is not particularly helpful to have dicta quoted from particular decisions on particular facts as if they established any new point of principle, or as if it were legitimate to transfer those dicta across to the facts of another case on the basis they were likely to provide much illumination.[22]The relevant principles that have to be applied in this class of case were set out by the House of Lords in Horvath . It is well known that the House of Lords determined in Horvath that:
". . . on a determination under article 1A(2) of the Convention as to whether a person outside the country of his nationality claiming refugee status owing to a fear of violence from non-state agents had shown, first, that he had a well-founded fear of being persecuted and, if so, that he was unable or owing to that well-founded fear unwilling to avail himself of the protection of that country, the test as to when the ill-treatment complained of amounted to 'persecution' was dependent not only on the severity of the ill-treatment but also upon there being a failure by the state to afford protection against that ill-treatment", and further: "
When determining whether there is sufficient protection against persecution in the person's country of origin it is sufficient, to meet the standard required by the Convention, that there is in that country a system of criminal law which makes violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies."[23]Mr Jorro in his submissions today made no reference to the tribunal's clear findings about the system of law in the Czech Republic at the time the appellate authority were considering this matter. In my judgment, in a branch of jurisprudence which is fact-rich, it was very much a matter for this expert tribunal (which must be receiving many applications from unhappy Roma people from central Europe) to apply the principles they have been told to apply by the House of Lords in Horvath . In my judgment this case does not raise any point fit for a further appeal, which would be a third appeal, to this court.[24]I turn, therefore, to a matter of more general interest. In Cooke v Secretary of State for Social Security (see above) Hale LJ, with whom Clarke LJ and Butterfield J agreed, set out certain principles in relation to appeals from expert tribunals which themselves represented a second layer of appeal in a specialist tribunal structure. At paragraph 15, referring to social security law, she said: "Firstly, this is a highly specialized area of laws which many lawyers - indeed, I would suspect most lawyers - rarely encounter in practice. Secondly, there is an independent two-tier appellate structure . . . After the initial decision there is a fresh hearing before a specialist tribunal which is chaired by a lawyer and has an appropriate balance of experience and expertise amongst its members. After that there is an appeal on a point of law to a highly expert and specialized legally qualified body, the Social Security Commissioners. Thirdly, it is essential that the tribunal structure is sufficiently expert to be able to take an independent and robust view, particularly in cases where the government agency has gone wrong. It must be in a position to see through what the relevant sponsoring department is saying when he is arguing the case".[25]In those circumstances, she said, the Court of Appeal should be slow to grant permission for further appeal from the commissioners. She added:
"The point is also relevant for other similar appeal structures, such as those of the Employment Tribunals and Employment Appeal Tribunal, those of the Adjudicators and Immigration Appeal Tribunals, those of the Leasehold Valuation Tribunals and the Lands Tribunal. However, there are significant differences between this system and those which may affect matters", and, she continued: "
I would therefore confine my views . . . to this particular tribunal structure, while expecting that similar arguments may be appropriate if they arise elsewhere."[26]I do not consider that the IAT is comparable in this context to the Social Security Commissioners. Appeals to the IAT often raise complex issues of fact as well as difficult questions of law. The law is still developing, as is evidenced by the number of major appeals coming to this court and to the House of Lords in recent years. The IAT has a complement of 16 full-time legal chairmen, and 20 part-time chairmen also assist in its work, quite apart from the lay members. It has been the experience of this court that the determination of some panels of the IAT must be of uncertain quality.[27]The most in my judgment that can be said is that:(1) Properly reasoned well-structured judgments of the IAT will normally mark the end of the road unless there is some uncertainty about the applicable law.(2) This court will be reluctant to permit a second appeal if the IAT set out the relevant principles of law correctly and set out the facts clearly before applying the law to the facts.(3) If the IAT refuses permission on appeal and a single Lord Justice also refuses permission, the Legal Services Commission should be slow to grant a certificate granting an oral hearing, representing a third attempt.(4) It would be helpful if both the IAT and immigration adjudicators took care in the way they structured their judgments, so that a prospective appellate court or tribunal can see swiftly whether there is an issue or issues which wanted an appeal. The determinations should not be overlong, and it should not be felt to be necessary to cover every single argument or issue, however minor, in a determination. What is important is that the applicant should feel that proper attention has been paid to the main points he wishes to raise, and that an appellate court should be able to understand the reasoning process and should have little difficulty in satisfying itself that the correct principles of law have been applied (if they have).(5) In all this, I have not forgotten the words of Lord Bridge in Bugdaycay v Secretary of State for the Home Department [1987] AC 514 to the effect that, in cases touching on fundamental rights, courts and tribunals should apply "the most anxious scrutiny".[28]So far as the delay is concerned, Mr Jorro did not attempt to justify the delay, but he urged us to consider that the appeal had sufficient merit to warrant an extension of time. In my judgment this proposed appeal does not have the merits which are contended for, and it would be wrong to extend time.[29]This application is therefore dismissed.

LORD JUSTICE TUCKEY: I agree.

LORD JUSTICE LAWS:I also agree.

ORDER

Application dismissed. Detailed assessment of the applicant's costs. (Order not part of approved judgment)

Cited in 4 later judgments