Ikaeva v Secretary of State for the Home Department [2005] EWCA Civ 442

Case No C4/2005/0110[2005] EWCA Civ 442
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Wednesday, 20th April 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE SEDLEY
Between
NATELA IVANOVA IKAEVAAppellant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MISS CECILIA HULSE (instructed by Messrs Harding Evans, Newport NP20 1TE) appeared for Applicant for The Respondent did not appear and was not represented
J U D G M E N T

LORD JUSTICE SEDLEY:

[1]This application is made by Miss Hulse, by way of renewal, for permission to appeal. It was refused on the papers by Buxton LJ. He wrote:
"This appeal has no reasonable prospect of success. I very much doubt whether the IAT had jurisdiction to entertain an appeal. In particular, the issue of internal flight would appear to be a question of fact, not of law. Once launched on the appeal, the IAT made findings that were fully open to it. No error of law either by the IAT or by the adjudicator is demonstrated. On the particular point of the internal passport, the IAT's analysis did not differ significantly from that of the adjudicator: the findings of both tribunals were that there were areas to which the applicant could safely re-locate."
[2]Having reconsidered the papers and heard Miss Hulse, the following seems to me to be the situation. This woman was found by the adjudicator to be telling him a truthful story. It was a story which essentially involved repeated hooligan attacks on herself and her two sons because of the known political sympathies and conceivably, too, the ethnicity of her husband, who was of Caucasian origin (an origin which on the evidence attracts much prejudice and hostility in modern Russia), but mainly because he had declared his support for the Chechen rebels. North Ossetia, where the family lived, is where, among other things, the Beslan school hostage disaster took place. In any event, whether its grounds are ethnic, religious or political, if there was persecution it comes within the Geneva Convention.[3]The adjudicator found, however, that what had happened did not amount to persecution. He made this finding at paragraph 18 of his decision. The IAT held that he had made no error of law (their jurisdiction being confined to questions of law) in reaching that conclusion.[4]What the IAT overlooked, it seems, was that the adjudicator in paragraph 19 had gone on to make a further finding, which again seems to me unimpeachable, namely that if it did amount to persecution it was not because of a failure of state protection. He had in mind, in other words, what he himself had noted in paragraph 5 as the doctrine of Horvath, namely that the state is not a guarantor of protection, but is required to do what a state should on any view attempt to do: protect its citizens from violence.[5]Those two findings seem to me to be unassailable, as the IAT held the first of them was, and to conclude the Geneva Convention issue against the applicant unappealably. This means that the findings which both the adjudicator and the IAT went on to make, to the effect that the applicant could in any event relocate internally in Russia, do not matter. If they did matter, I would have little hesitation in saying that both are arguably inadequately reasoned. But since they are, on the premise I have described, otiose, nothing can hang upon them in appellate terms.[6]Where it seems to me there is a gap is between the Refugee Convention decision and the human rights issue. It was throughout the applicant's alternative case that she would, if returned, be exposed to a breach of her rights under Article 3 of the European Convention on Human Rights: the right not to be subjected to inhuman or degrading treatment. The adjudicator dealt with this at paragraph 27 and simply said:
"... there is not a real risk that she will suffer a breach of her protected rights under Article 3 of the ECHR ..."
[7]The IAT at paragraph 6 rolled this together with the persecution question and said:
"Given that a high threshold is required in order to find persecution and, by the same token, treatment contrary to Article 3 of the ECHR ..."
[8]It is arguable, it seems to me, that the two do not hang entirely together, either so as to enable the adjudicator to rely entirely on his previous findings in order to dismiss any real risk of a breach of Article 3, or so as to enable the IAT to treat the two in the same breath. It is arguable, I say no more at this stage, that, first of all, there does not have to be shown persecution of a systematic nature which the Geneva Convention requires, and, secondly, that Article 3, while a question must arise about the acts of individuals as opposed to those of the state, does not pose the question of state protection in quite the same terms as Horvath does.[9]In those circumstances, it seems to me that there is one issue and one issue only upon which Mrs Ikaeva should have permission to appeal to this court, and that is whether the adjudicator and/or the IAT dealt adequately in law with her claim under Article 3 of the European Convention on Human Rights. To that extent, permission to appeal is granted.

ORDER

Application for permission to appeal granted; the application to admit further evidence adjourned to the full court hearing the appeal; time estimate for the appeal of half a day; constitution of the court to be three judges, but one may be a High Court judge. (Order not part of approved judgment)