"The facts can be succinctly stated. The appellant is 26. He comes from a village called Palin from the county of Mikhalovice, where the Roma community, to which he belongs, are a small minority. On15 October 1997 he arrived in the UK with his wife and child and claimed asylum. He stated he feared persecution in Slovakia by skinheads, against whom the Slovak police failed to provide protection for Roma. Among the episodes to which he referred was the beating to death of his father (which did not even lead the police to come to his house: 'They pretended it hadn't happened'), this was in 1985 under the communist regime; an attack on his brother by skinheads armed with vicious weapons; persistent attacks on his home, leading the appellant and his brothers to dig a hole in the ground in their back garden and regularly take shelter in it at night; the destruction by skinheads of every item in the appellant's home, leaving an empty shell; attacks on all the Roma in the appellant's village ('the police didn't want to get involved'); serious violent attacks on two Roma neighbours; and the murder of two others. He said that if they were returned to Slovakia he was afraid that he would again be persecuted by the skinheads because he was a gypsy. He will not get protection from the police who don't care at all about their problems. His written statement reported that 'skinheads would come to our village and throw bombs into the homes of gypsies'; that 'approximately 3 to 4 times a week neo-Nazis would … hurl abuse outside my windows that all gypsies must die', that the situation 'caused me to fear for my life' and that he came to the UK because he wanted his child to grow up in a country in which she is not persecuted. He also stated that along with other Roma, he was unable to find work and the Slovak authorities failed to afford him normal public facilities including marriage and schooling for his child."
"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."
"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."
"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 in The Law of Refugee Status (1991), p 112 has explained, "persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community."
"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 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."
"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 consists 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."
"Fortunately the situation in Slovakia is not such as to give rise to the problems which may arise in other jurisdictions where there is no effective state authority or the state authority is unable to provide protection. The present case is relatively straightforward. The institutions of government are effective and operating in the Republic of Slovakia. The state provides protection to its nationals by respecting the rule of law and it enforces its authority through the provision of a police force. But, as the Immigration Appeal Tribunal said in its judgment, there is racial violence against Roma perpetrated by skinheads. The police do not conduct proper investigation in all cases and there have been cases where their investigation is 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 Immigration Appeal Tribunal said in its judgment that in its view it was the failure of the state to provide protection that converts the discriminatory acts into persecution. On that approach, having considered the evidence, it decided that the applicant 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. The tribunal stated: "
"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 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 not therefore 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 its own nationals. As Ward LJ said [2000] INLR 15 , 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 if steps are taken by the state to which we look for our protection. I consider that the Immigration Appeal Tribunal in this case applied the right test when they were considering the evidence."
"I do not believe that any complete or comprehensive exposition can be devised which would precisely or 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 expectation. Moreover it is relevant to note that in Osman v United Kingdom(1998) 29 EHRR 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 … the person must be able to show that 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 that 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 LJ in the Court of Appeal may well serve as a useful description of what is intended, where he said [2000] INLR 15 , 26, para 22: "
"The dominant view … is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard (Page 108) … In sum, persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognized by the international community. (Page 112)"
"I am not however satisfied that the appellant has demonstrated that she would be denied a sufficiency of protection within Slovakia were she to be returned to her own country. It is generally accepted that Roma do face discrimination from certain elements of Slovak society. However the documentary evidence satisfied me to the required standard that there is in place a sufficiency of protection. The Slovak Government at its very highest level has made it clear in Prime Ministerial statements that it is committed to offering protection to ethnic minorities who face discrimination. There are procedures in place which could offer the appellant effective protection. The appellant has failed to discharge the burden of proof which is a lesser standard than the balance of probabilities."
"We shall assume in the appellant's favour that something of the kind suggested would be reasonably likely to happen on any occasion when a complainant of full age and sound mind sought to withdraw an allegation of crime, even if that person mentioned threats. The short point which arises in this case is whether that sort of reaction on the part of the police amounts to so serious a failure of protection as to engage the Convention."
"We have no doubt in this case that, if the Slovak police had refused to investigate the case at all, then that would have been such a failure. That is not of course what happened; they simply accepted that the expressed wish of the appellant's father, who was of full age and apparently sound mind, not to go on with it. While we are prepared to accept that the further threats would have been criminal in Slovakia, as in England, there is nothing to suggest that, if the appellant's father's attitude had been different, the police would not have been willing to investigate these, as they had been with the original complaint. As it was, they made it quite clear that they were prepared to re-open on demand. While these are not our ways now, they might well have been in the past. Different countries, and their criminal justice systems, develop at different speeds, and from different bases. In trying to set an international standard, we prefer to be guided by our idea of the basic minimum on which all reasonably civilised countries could agree, rather than by imposing "the best practice" from one on what may be the very different history and conditions on others. We do not consider that the willingness of the Slovak police to allow a person of full age and sound mind to withdraw a serious criminal complaint, even after threats have been mentioned, can amount to a breach of that basic standard equivalent to denying protection, and engaging the international duty of surrogate protection under the Convention."
"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 the courts, to detect, prosecute and punish offenders."
"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 that line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case."