Bagdanavicius & Anor, R (on the application of) v Secretary of State for Home Department [2003] EWHC 854 (Admin)

Case No CO/5966/2003[2003] EWHC 854 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday 16 April 2003
Strand,
London, WC2A 2LL
Before
THE HONOURABLE MR JUSTICE MAURICE KAY
The Queen on the application of
Between
(1) RUSLANAS BAGDANAVICIUSClaimants(2) RENATA BAGDANAVICIENEClaimantTHE SECRETARY OF STATE FOR HOME DEPARTMENTDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Raza Husain (instructed by Refugee Legal Centre) for ClaimantsLisa Giovannetti and Samantha Broadfoot (instructed by Treasury Solicitors) for Defendant
Judgment
[1]Mr. Bagdanavicius and his wife are citizens of Lithuania. He is of Roma ethnic origin. They have a son who was born on 14 August 2001. The family arrived in the United Kingdom on 7 December 2002 and claimed asylum. They were interviewed and the Refugee Legal Centre submitted the report of an expert, Dr. Mark. A central feature of the case advanced on their behalf was the claim that they had been subjected to repeated ill-treatment by Mrs. Bagdanaviciene’s brother, Zilvanis, and his associates who are Lithuanian Mafiosi. The problems related to Mr. Bagdanavicius’ Roma origins. It was suggested that by reason of corruption, complicity or inactivity the Lithunanian police were ineffective in the provision of protection. In addition Mr Bagdanavicius suffered discrimination with regard to social benefits, employment, education and access to healthcare by reason of his ethnicity. The report of Dr. Galeotti referred to prejudice and discrimination against Roma and mixed marriages; it confirmed that organised crime was a serious problem, not least in the Claimants’ home town of Alytus, and that there were links between organised crime and corrupt police officers. The report opined that the criminal justice system in Lithuania did not provide adequate protection to those targeted by organised criminal elements and that internal relocation was of limited effectiveness. Relying on all this, the case put forward by the RLC on behalf of the Claimants was that they have a well – founded fear of persecution if they were to be returned to Lithuania, the reason for which would relate to his Roma ethnicity and their mixed marriage. They were therefore entitled to protection under the Refuge Convention. In addition, if they were to be returned to Lithuania, their return would place this country in breach of the European Convention on Human Rights and Fundamental Freedoms (ECHR), by reference to Articles 3 and 8.[2]On 14 December 2002, the Secretary of State refused the claims. He certified them as “clearly unfounded” pursuant to section 115 of the Nationality, Immigration and Asylum Act 2002. The relevant parts of section 115 provide as follows:
“(1) A person may not bring an appeal under section 65 or 69 of the Immigration and Asylum Act 1999 (human rights and asylum) while in the United Kingdom if - (a) the Secretary of State certifies that the appeal relates to a human rights claim or an asylum claim which is clearly unfounded….. (5) Where a person in relation to whom a certificate is issued under this section subsequently brings an appeal…..under section 65 [or] 69….of that Act while outside the United Kingdom, the appeal….shall be considered as if he had not been removed from the United Kingdom. (6) If the Secretary of State is satisfied that a person who makes a human rights claim or an asylum claim is entitled to reside in a State listed in subsection (7) he shall issue a certificate under subsection (1) unless satisfied that the claim is not clearly unfounded. (7) Those States are…. (g) the Republic of Lithuania….”
Thus, the effect of section 115 is to deny a person whose claim has been certified as “clearly unfounded” an in-country right of appeal to an Adjudicator and the Secretary of State is obliged to certify if the person comes from one of the listed States (essentially the current candidates for membership of the European Union) unless he is satisfied that the claim is not clearly unfounded. (a) the Secretary of State certifies that the appeal relates to a human rights claim or an asylum claim which is clearly unfounded….. (g) the Republic of Lithuania….”[3]Although section 115 is a new provision – it came into force on 7 November 2002 – its conceptual progenitor is the “manifestly unfounded” certificate in “third entry” cases: see section 72(2)(a) of the Immigration and Asylum Act 1999. It was made clear to Parliament during the debates on the Nationality, Immigration and Asylum Bill that the Secretary of State would not be arguing that “clearly” means anything different from “manifestly” (see Lord Falconer of Thoroton, Hansard, 23 July 2002, col 342).[4]This is the first case in which section 115 has received judicial scrutiny in a substantive hearing. However, it has already been considered by the Court of Appeal on an unsuccessful appeal against a refusal of permission to apply for judicial review in ZL and others v. SSHD [2003] EWCA Civ 25. Giving the judgment of the Court of Appeal, Lord Phillips of Worth Matravers MR said (at paras 57 and 58): “How, if at all, does the test in section 115(6) differ in practice from [the test under section 115(1)]? It requires the Home Secretary to certify all claims from the listed states ‘unless satisfied that the claim is not clearly unfounded’. It is useful to start with the ordinary process, such as section 115(1) calls for. Here the decision-maker will –(i) consider the factual substance and detail of the claim(ii) consider how it stands with the known background data(iii) consider whether in the round it is capable of belief(iv) if not, consider whether some part of it is capable of belief(v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not. Assuming that decision-makers – who are ordinarily at the level of executive officers – are sensible individuals but not trained logicians, there is no way of applying section 115(6) except by a similar process of inquiry and reasoning to that described above. In order to decide whether they are satisfied that the claim is not clearly unfounded, they will need to consider the same questions. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. If that point is reached, the decision-maker cannot conclude otherwise. He or she will by definition be satisfied that the claim is not clearly unfounded. ” (i) consider the factual substance and detail of the claim (ii) consider how it stands with the known background data (iii) consider whether in the round it is capable of belief (iv) if not, consider whether some part of it is capable of belief (v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention.[5]Following the certification by the Secretary of State on 14 December 2002 in the present case, the Claimants applied for permission to apply for judicial review of the certification. At an oral hearing on 16 January 2002, I granted permission. The substantive hearing took place before me on 27 February and 18 March. By the time the substantive hearing began, the Claimants had made further representations to the Secretary of State and the Secretary of State had reconsidered the matter. On 25 February 2003 he decided to maintain the certification. It is agreed by the parties that I should review the totality of the Secretary of State’s decision and not just the part of it which preceded the filing of the application on 24 December 2002. It is therefore necessary for me to refer in some detail to the decision letters of 14 December and 25 February.

The decision of 14 December

[6]The Secretary of State addressed the claim issue by issue. He rejected the allegation that Mr. Bagdanavicius had been persecuted by his wife’s family because of his Roma ethnicity because the matters complained of “would seem to fluctuate and be dependant on other factors at any given time rather than anything to do with your Roma ethnicity (which is a constant)”. He considered that if fear of the wife’s family had been genuine, “it is reasonable to expect that you would have made every effort to avoid contact with them….by attempting to move elsewhere”. The Secretary of State was unimpressed by the Mafiosa claims. He referred to the witness protection scheme in Lithuania and added that “you would have been able to take the matter to the police and seek protection under that programme”. He considered that “you could have attempted to seek redress through the proper authorities before seeking international protection”. He accepted that relations between the Roma community and the police can be problematical but was unaware of any recorded acts of violence by law enforcement officers against Roma individuals. He was satisfied that the Lithuanian Government is willing and able to provide protection against such acts. He noted that Mr. Bagdanavicius had made no attempt to ascertain what avenues of redress were open to him and that his lack of action undermined the claimed need for international protection. Although there were occasional reports of the use of unlawful violence by police officers, such incidents “are not knowingly tolerated by the Lithuanian authorities”. He added:
“….the incidents which you have described were random in nature and were the result of individuals abusing their official position….the Government is able and willing to provide protection against such acts even when committed by officials of the State.”
The allegation of refusal of medical help was undermined by the fact that Mr. Bagdanavicius had received treatment for Hepatitus C at a hospital in Vilnius. The Secretary of State accepted that there was some societal discrimination and intolerance towards Roma in Lithuania but was satisfied that the Government was taking steps to address the problems. His survey of international human rights reports produced no evidence that Roma are a persecuted group in Lithuania and he did not accept that the mixed marriage caused the thresholds of the Refugee Convention in the ECHR to be crossed. He dismissed the report of Dr. Galeotti as reflecting “his own personal judgments” and making “no contribution to your individual case”.[7]The Secretary of State considered that Article 3 of the ECHR was not breached because the alleged discrimination did not reach the requisite threshold of severity and “there is a sufficiency of protection available in Lithuania”. He was also satisfied that removal to Lithuanian would not interfere with family life and, consequently, Article 8 was not breached.

The decision letter of 25 February 2003

[8]In due course, the Secretary of State received further witness statements submitted on behalf of the Claimants, together with a supplementary report from Dr. Galeotti and a letter from Adam Lavine, a Home Office official. He reconsidered his decision to refuse and to certify in the light of this further material but came to the same conclusion. He took the view that the further evidence “highlights further inconsistencies which adversely affect….credibility”. For example, a statement from Mr. Bagdanavicius’ cousin described a very serious assault on Mr. Bagdanavicius by Zilvanis and his friends but the incident did not feature in any of the accounts put forward by the Claimants themselves. There were also significant chronological discrepancies in their accounts. Turning to the question of internal relocation as a response to the alleged ill-treatment at the hands of Zilvanis and his friends, the Secretary of State “remains satisfied that an adjudicator properly applying the relevant legal principles could not legitimately conclude that internal relocation is not an option….in the light of the nature and circumstances of the ill-treatment alleged and the background information about Lithuania. Even if these incidents did take place as claimed, all the objective evidence the Secretary of State has seen indicates that the police in Lithuania do take action in cases of assault. The acceptance of the situation by Dr. Galeotti in his letter of 6 February 2003… confirms the opinion of the Secretary of State….it is quite clear that the Lithuanian State authorities are willing and able to discharge their duty to protect all their citizens from persecution and/or torture or cruel, inhuman or degrading treatment. It is plainly open to your clients to avail themselves of such protection and their claim to the contrary is clearly unfounded.”

The grounds of challenge

[9]These proceedings are in the form of a challenge to the certification of the claims as “clearly unfounded”. On behalf of the Claimants, Mr. Husain submits that the certification is legally flawed because(1) the Secretary of State erred in his approach to the expert evidence, in particular the report of Dr. Galeotti;(2) the Secretary of State misdirected himself as to the law on sufficiency of protection;(3) he further erred in his approach to sufficiency of protection by reference to the facts of this case;(4) similarly, he erred in his approach to credibility and internal relocation;(5) the reasoning of the Secretary of State is insufficient to sustain a “clearly unfounded” certificate; and(6) the Secretary of State’s approach to the human rights claims was flawed.

The approach of the Court on judicial review

[10]Before I consider the grounds of challenge, it is necessary to have in mind the approach of the Court in a case such as this. In ZL, the Court of Appeal stated that:
“a section 115 decision is one which the court is as well placed as the Home Secretary to take.” (para 29) And (at para 56): “The test is an objective one: it depends not on the Home Secretary’s view but upon a criterion which a court can readily reapply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not.”
It seems to me that the criterion there referred to must be the same as that identified by the House of Lords when dealing with the cognate “manifestly unfounded” test under section 72(2)(a) of the 1999 Act in R (Yogathas and Thangarasa) v. SSHD [2002] UKHL 36. In the words of Lord Bingham of Cornhill (at para 14):
“…..the Home Secretary is entitled to certify if, after reviewing the material, he is reasonably and conscientiously satisfied that the allegation must fail.”
Or, as Lord Hope of Craighead said (at para 34):
“The question….is whether the allegation is so clearly without substance that the appeal would be bound to fail.”
It is essentially a predictive exercise. And (at para 56): Or, as Lord Hope of Craighead said (at para 34):

Ground 1: the expert evidence

[11]Dr. Galeotti is the Director of the Organised Russian and Eurasian Crime Unit at the University of Keele. He has years of experience in research into Soviet and post-Soviet affairs with particular reference to crime and security. He has advised the Foreign and Commonwealth Office on policing and law enforcement in the Baltic states. At the request of the Refugee Legal Centre he prepared a report on the Claimants. It is dated 12 December 2002. It summarises Dr. Galeotti’s conclusions thus:
“Anti-Roma prejudice is a real problem in Lithuania. Lithuanian organised criminals have proven violent in the pursuit of their personal and professional agendas. Lithuanian organised crime is also closely intertwined with corrupt officials and police officers. Many police officers and prosecutors are, of course, honest and hardworking, but they are hampered by a lack of resources and legal instruments and corruption in the courts and alongside them in the police. Internal flight is of limited effectiveness given the small size of this country, if the prosecutors are able to draw on the services of corrupted police officers. There are therefore serious concerns as to how reliable and credible the level of protection the Lithuanian state could offer a couple who were already stigmatised and who had fallen foul of organised crime figures with corrupted police allies.”
[12]The report was submitted to the Secretary of State in support of the applications. In the refusal letter dated 14 December 2002, the response was:
“the Secretary of State is aware that the report reflects Dr. Galeotti’s own personal judgments on the general situation and he has made no contribution to your individual case. Accordingly, the Secretary of state does not accept that this report adds any weight to your claim to need international protection.”
The reference to “personal judgments” is derived from paragraph 2 of the report in which Dr. Galeotti, having set out details of his experience and organisations with which he has been or is connected, added:
“However, the report purely reflects my own personal judgments.”
[13]I do not hesitate to say that the approach to Dr. Galeotti’s report in the refusal letter dated 14 December was at least misguided and possibly disingenuous. It is apparent that Dr. Galeotti’s reference to “my own personal judgments” was simply a statement that the contents of his report were not to be attributed to his present employer or any of the organisations for which he has worked. If time had stood still on 14 December I would have been most concerned that a “clearly unfounded” certificate rested, at least in part, on such an inappropriate reason for rejecting Dr. Galeotti’s report. On the basis of the material available at that time I could not have concluded that an appeal to an Adjudicator would have been bound to fail. However, time has not stood still.[14]Following service of the claim form in these proceedings, the Secretary of State reconsidered Dr. Galeotti’s report. His reconsidered view is to be found in a letter of 6 January 2003. It criticises Dr. Galeotti on the basis that he relied on an EU document of 2001 but did not refer to a later EU document of October 2002. This did not support Dr. Galeotti on the question of prejudice against Roma or persecution of parties to mixed marriages. It further criticises Dr. Galeotti’s views on organised crime on the basis that he relied on data from 1994 and 1998 whereas the EU report of 2002 did not identify organised crime as a serious problem. It observes that Dr. Galeotti provided no objective evidence of a clear link between organised crime and police corruption. Finally, it criticises Dr. Galeotti’s view that police corruption compromises effective protection by pointing to the EU report of 2002 which identified “continuing considerable progress” in anti-corruption measures since the 2001 report. It refers to specific provisions in the Criminal Code of September 2000 before concluding:
“….the Secretary of State does not consider that Dr. Galeotti’s report comes anywhere near to establishing that the Lithuanian police would fail to provide you with the appropriate level of protection if you were continued to be threatened by criminals on your return to Lithuania nor that the appropriate avenues of redress would not be available or effective.”
[15]This gave rise to a yet further round of correspondence, in which the Secretary of State took issue with Dr. Galeotti and relied upon the researches of an official in the Country Information and Policy Unit. In a witness statement dated 30 January 2003 Simon Bentley, an official in the Immigration and Nationality Directorate, maintained the Secretary of State’s decision and agreed with Dr. Galeotti that “the main issue raised by this case is not so much societal discrimination as the alleged treatment by Mrs. Bagdanaviciene’s family”. He added:
“The case is now being presented as if the Claimants are being targeted by the Lithuanian Mafia who would be determined to track them down and cause them serious harm wherever they went in Lithuania. Dr. Galeotti’s reports are all predicated on this view. However, the Claimants’ account simply does not bear this out: they are not complaining of being Mafia targets, but of opportunistic violence from Zilvanis.”
Dr. Galeotti’s final document is a report dated 6 February 2003. In it he states that nothing in the Home Office material causes him to alter his opinion or the reasons for it but, when addressing the subject of witness protection, he says:
“The substantive point is that this programme is in place specifically to combat organised criminal activities, not simply all crimes carried out by criminal gangs. Either the Bagdanavicius are the victims of organised crime such that witness protection may be available or else they are not and it is not.”
[16]In the final decision letter dated 25 February 2003 the Secretary of State quotes that passage as being supportive of the proposition that all the objective evidence indicates that the police do take action in cases of assault before concluding that “it is quite clear that the Lithuanian state authorities are willing and able to discharge their duty to protect all their citizens from persecution and/or torture or cruel, inhuman or degrading treatment. It is plainly open to [the Claimants] to avail themselves of such protection”.[17]It can be seen from all this that the Secretary of State has moved from his initial, peremptory and, in my view, unsustainable rejection of Dr. Galeotti’s first report in the letter of 14 December 2002 to a reasoned rejection of its significance to this case in the January and February letters. I have no doubt that that conclusion was open to him. However, the question which then arises is: in the light of Dr. Galeotti’s various contributions, are the claims “clearly unfounded” so as to justify certification? The submission of Mr. Husain is that there remains material in Dr. Galeotti’s reports which might lead an adjudicator to a different conclusion. On behalf of the Secretary of State, Miss Giovanetti submits that, taking them at their highest, Dr. Galeotti’s reports do not deal with the reality of this case because they essentially deal with organised crime on a grand scale rather than with a family feud of this kind and, to the extent that they concern the Mafia connections of Zilvanis, they overstate the position in that Zilvanis has not exploited those connections. His ill-treatment of Mr. Bagdanavicius has occurred infrequently and then only on the occasions of chance meetings in the street. Thus, to suggest that the Claimants would be at risk from Mafiosi acting on behalf of Zilvanis if they relocated to, say, Vilnius is fanciful.[18]In my judgment, Miss Giovanetti is correct. I have come to the same conclusion as the Secretary of State. The input of Dr. Galeotti, when placed alongside the Claimants case, does not persuade me than an adjudicator might come to any conclusion other than that the Lithuanian authorities are willing and able to protect the Claimants from persecution and breaches of their human rights. I find no legal error in the Secretary of State’s eventual treatment of Dr. Galeotti’ s reports. It does not vitiate the certificate.

Ground 2: sufficiency of protection

[19]In relation to both the asylum and the human rights claims the view of the Secretary of State is that: “the Lithuanian state authorities are willing and able to discharge their duty to protect all their citizens from persecution and/or torture or cruel, inhuman or degrading treatment. It is plainly open to [the Claimants] to avail themselves of such protection and their claim to the contrary is clearly unfounded.” (Refusal letter of 25 February 2003). In other words, whether one is considering the Refugee Convention or Article 2 or 3 of the ECHR, the claim is bound to fail by reason of sufficiency of protection in Lithuania. The case for the Claimants is that all this founders because of legal error in relation to the test for sufficiency of protection. Mr. Husain makes a sophisticated and wide-ranging submission on the basis of a review of the authorities. Reduced to its essence it is that protection is sufficient if, but only if, it rules out the reality of a risk of ill-treatment and that, consequently, protection is not sufficient if there remains a real risk, even if there exists a criminal justice system which punishes wrongdoers in a manner commensurate to their wrongdoing and which is operated by the authorities with reasonable efficiency. He submits that the key authority in support of these propositions is R (Dhima) v. Immigration Appeal Tribunal [2002] Imm AR 394. However, before turning to that decision of the Divisional Court, it is necessary for me to set it in context.[20]Clearly the leading recent authority on sufficiency of protection in asylum law is the decision of the House of Lords in Horvath v. SSHD [2001] 1 AC 489. It turned on the meaning of Article 1A(2) of the Refugee Convention which provides that 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…..”
Lord Hope of Craighead (with whom Lord Browne-Wilkinson and Lord Hobhouse of Woodborough agreed) said (at pp 499-500):
“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.”
As to the principle of surrogacy, he said (p 500):
“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 on 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 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 even if steps to prevent this are taken by the state to which we look for our protection.”

He concluded (at p 501):

“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.”
As to the principle of surrogacy, he said (p 500): He concluded (at p 501):[21]It cannot be doubted that the ratio of Horvath is to be found in Lord Hope’s speech. That follows from the express agreement, without addition, of Lord Browne-Wilkinson and Lord Hobhouse. Also, the speech of Lord Clyde contains no manifestation of express disagreement with Lord Hope. Lord Clyde referred to a passage in the judgment of Stuart-Smith LJ in the Court of Appeal as giving “helpful guidance” (p 511). He concluded (at p 516):
“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…..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.”
[22]Mr. Husain seeks to drive a wedge between the speeches of Lord Hope and Lord Clyde in order, respectfully, to marginalize the latter. I am bound to say that I perceive no significant inconsistency between them. I take solace from the fact that in R (Dhima) v. IAT Imm AR 394 Auld LJ considered that any difference between them was “largely a matter of emphasis” (p 399) and in Banomova v. SSHD [2001] EWCA Civ 807 Clarke LJ (at para 28) could not detect “any difference in substance” between them. He took Horvath to have decided that (para 29):
“the system must provide for a criminal law which makes it a criminal offence to persecute individuals for a Convention reason and there must be appropriate penalties imposed on those who commit such crimes. The system must also be operated in such a way that victims of a particular class are not exempted from the protection of the law and there must be a reasonable willingness on the part of the police and law enforcement agencies to investigate, detect and prosecute.”
[23]Thus far, I have confined this consideration of sufficiency of protection to asylum cases. However, in Dhima the Divisional Court held that the Horvath test applies also to human rights appeals. Miss Giovanetti submits that, on the basis of Horvath and the assimilation in Dhima, the case for the Claimants on the law of sufficiency of protection is simply unarguable. How, then, does Mr. Husain seek to circumvent that submission?[24]He invokes Dhima for a different purpose. He suggests that it provides support for his “reality of the risk” approach. In my judgment, it does not. Auld LJ said (at p404):
“……..what is critical is a combination of a willingness and ability to provide protection to the level that can reasonably be expected to meet and overcome the real risk of harm from non-state agents. What is reasonable protection in any case depends, therefore, on the level of the risk, without that protection, for which it has to provide.”
He considered that that reflected the ratio in Horvath but that the following proposition (taken from a New Zealand case) did not:
“If the net result of a state’s ‘reasonable willingness’ to operate a system for the protection of the citizen is that it is incapable of preventing a real chance of persecution of a particular individual, refugee status cannot be denied that individual.”
That rejected proposition closely resembles the one for which Mr. Husain is contending in the present case. Contrary to his submission, I do not consider it to be supported by Dhima.[25]From that inauspicious start, Mr. Husain’s submissions branch out in a number of directions and lack nothing in ingenuity. One such direction is in the form of reliance on the distinction between positive and negative obligations in relation to Articles 2 and 3 of the EHHR. In my judgment, some of the authorities referred to by Mr. Husain in support of that distinction have little to do with the issues and context of the present case. I put in this category D v. United Kingdom (1997) 24 EHHR 423, R (A and ors) v. Lord Saville of Newdigate [2002] 1 WLR 1249 and R (Pretty) v. DPP [2002] 1 AC 800. Kinuthia v. SSHD [2002] 1 NLR 133 is not a non-state agent case and, in any event, cannot have been intended to put a gloss on Horvath as none of the three members of the Court of Appeal mentioned it. Reliance on Svazas v. SSHD [2002] 1 WLR 1891 is also misplaced as that authority is also clearly concerned with state agents, Sedley LJ observing (at p 1902):
“…..there is a real difference, to which Lord Hope and Lord Clyde themselves draw attention, between state and non-state agent cases.”
All this leads me to the conclusion that Mr. Husain is attempting to make bricks without straw. Such relevant post – Horvath straw as exists is against him. In addition to the cases to which I have referred, see SSHD v. Krepel [2002] EWCA Civ 1265, although I do not dwell on that case because it was a permission application (albeit fully argued to a three judge Court).[26]If follows from what I have said that I reject Mr. Husain’s submission as to the appropriate test of sufficiency protection in this case. It is not consistent with Horvath which remains authoritative.

Ground 3: factual issues

[27]I am gathering together under this heading a number of matters raised by Mr. Husain. (1). Evidence in relation to sufficiency of protection[28]This sub-heading is further divisible First, Mr. Husain seeks to reinforce his case on sufficiency of protection by reference to some recent judicial observations of a factual nature. In ZL (which did not concern Lithuania), the Court of Appeal, in the course of its consideration of section 115, said (at para 44):
“While this is the scheme of the relevant provisions, they do not establish conclusively that the states in section 115(7) are states where, in general, there is no risk of persecution. Lithuania is one of the countries listed there. In Svazas v. Secretary of State for the Home Department [2002] EWCA Civ 74 this court considered two appeals from Lithuanian asylum seekers. The appellants claimed that they had suffered repeated incidents of police brutality on account of their membership of the Communist Party. In the leading judgment Sedley LJ commented: ‘the picture established by the IAT can be paraphrased as one of a nascent democracy in which constitutional guarantees of proper treatment of citizens by the police are, despite the professed will and endeavours of the government, systematically or at least endemically violated’.”
In addition, Mr. Husain points to the successful asylum claim of Mr Bagdanavicius’ first cousin in respect of whom an Adjudicator made positive findings in August 2001. On the other hand, there is a recent decision of the Immigration Appeal Tribunal, SSHD v. Sirviene [2002] UKIAT 02843, in which the Tribunal took a far more sanguine view of conditions in Lithuania when determining another case which centred upon allegations about organised crime and police corruption, finding a willingness on the part of the authorities to provide the necessary protection and concluding that:
“on the material before us it is quite impossible to say that in Lithuania as a whole there is such a breakdown of effective protection against organised crime that anyone who is affected by it cannot be returned to Lithuania.”
My assessment of all this material, on both sides, is that it does not assist the Claimants in relation to the “clearly unfounded” certificate, having regard to the factual basis of their claim. ‘the picture established by the IAT can be paraphrased as one of a nascent democracy in which constitutional guarantees of proper treatment of citizens by the police are, despite the professed will and endeavours of the government, systematically or at least endemically violated’.”[29]Secondly, Mr. Husain submits that sufficiency of protection is undermined in this case because of the factual basis of the claim. In particular he suggests that it was wrong of the Secretary of State to hold against the Claimants their failure to make repeated complaints to the authorities in view of the inadequate and improper response of the police. However, there are significant inconsistencies and vagueness surrounding these matters – a point to which I shall return. Mr Husain also criticises the Secretary of State for failing to consider the medical condition and experiences as being relevant to the impact of racist attacks and corresponding protection needs. This leads to the submission that there is a real prospect that a level of protection considered sufficient against such racist treatment for a healthy individual may not be considered by an Adjudicator to be sufficient for the Claimants. However, once again I take the view that it is not possible to separate this aspect of the claims from their general inconsistency and implausibility. I shall deal with that next. (2). Credibility and internal flight[30]The accounts of the Claimants are set out in their interviews on 10-11 December 2002 and a number of later statements which seek to supplement or correct the earlier versions. I do not propose to burden this judgment by setting out their accounts in detail. I have already referred to the way in which the Secretary of State dealt with aspects of them in his decision letters. In her Skeleton Argument, Miss Giovannetti advanced a devastating critique of the Claimants’ factual case. Having referred to inconsistencies and the way in which the case developed by way of corrective statements, she put it in this way:
“It is apparent from that account that when [the Claimants] first moved in together in 1996, Zilvanis would come to their house and beat up Mr. Bagdanavicius. The Claimants went to stay with relatives and moved within the town of Alytus. There is no suggestion the Zilvanis has ever come to the Claimant’s house since [1996]. Mrs Bagdanaviciene has not seen him since later 1997/early 1998 and his ill-treatment of Mr. Bagdanavicius has been limited to beating him when he sees him in the street: once in 2001 and twice in 2002. The Claimants’ explanation for not moving away from Alytus is that Zilvanis would use his Mafia connections to track them down wherever in Lithuania they might move. This is also relied upon as a response to the question of internal relocation……However, this rather misses the point: if their account is to be believed, and if Zilvanis has such powerful Mafia connections that he could track them down wherever they might go in Lithuania, he plainly is not motivated to use them, because even with them living in the same town, his actions have been limited to three occasions in two years when he has beaten Mr. Bagdanavicius upon seeing him in the street.”
In other words, taking the account at its highest (notwithstanding its inherent inconsistencies, vagueness and implausibility), this is a factually weak case and an Adjudicator could not legitimately be satisfied that internal relocation is not an option.[31]In my judgment, these submissions are irresistible. The factual case, taken at its highest, is deeply flawed and an Adjudicator would be bound to reject it as a basis for an asylum and a human rights claim.

Other matters

[32]I do not claim to have covered every point in this well argued case but I ought to refer to two other matters. First, I do not consider that an Adjudicator could legitimately conclude that the Claimants have established to a reasonable degree of likelihood that the threshold of severity would be crossed in relation either to the Refugee Convention or Article 3 of the ECHR. Secondly, I reject the submission of Mr. Husain to the effect that the certification of the claims was inadequately reasoned. They were certified because the Secretary of State considered (as I do) that they are “clearly unfounded”. They are clearly unfounded because they would be bound to fail before an Adjudicator. They would be bound to fail before an Adjudicator for the reasons that they failed before the Secretary of State and in these proceedings.

Conclusion

[33]It follows from all that I have said that this application for judicial review must fail. The claims upon which it is based are clearly unfounded within the meaning of section 115. - - - - - - - - - - - - - MR JUSTICE MAURICE KAY: Yes, Mr Hussain? MR HUSSAIN: My Lord, I respectfully apply for leave to appeal to the Court of Appeal on two bases. First of all, I say with respect, an appeal would have real prospects of success, but I also say that there are very important issues arising from this judgment warranting an appeal to the Court of Appeal from my Lord's decision, and, accordingly, leave to appeal should be granted. My Lord will know that this is the first substantive case on the certification scheme introduced by the 2002 legislation, and, moreover, that there are a number of cases held in abeyance pending my Lord's judgment in this case. My Lord, we identify four issues for the purpose of this application to appeal. First of all the issue of sufficiency of protection. Secondly, the approach of the court to review the certificate. Thirdly, the approach of the court to reception of post-decision evidence which is a very important issue, we respectfully say. Fourthly, the issue of whether the reasons provided by the Secretary of State were adequate. If I can briefly address my Lord on those four issues. First of all: sufficiency of protection. We say -- MR JUSTICE MAURICE KAY: You do not need to. At the moment -- I will hear what Miss Stern says -- but I may be sympathetic on that one. MR HUSSAIN: Can I then go on to my second issue which is the approach of the court to review the certificate? My Lord, (inaudible) the approach to be clearly unfounded (inaudible) the manifestly unfounded certificate. We say, with respect, that there are important issues here. The ZL planning scheme may require a more muscular view than Thangarasa for the manifestly unfounded scheme. In particular, if my Lord recalls the submission made -- MR JUSTICE MAURICE KAY: You say it is different from going to a third country. MR HUSSAIN: Absolutely. The justiciability issue -- the court has already accepted the submission that this man can get (inaudible). My Lord, the third broad issue is the approach of the court to the reception of post-decision evidence. MR JUSTICE MAURICE KAY: We have considered post-decision evidence. MR HUSSAIN: My Lord, with respect, no because the last decision reached by the Secretary of State was on 25 February, two days before the hearing, which accompanied Ms Giovannetti's skeleton argument, and then statements were put in which responded to that skeleton which were very important because they went to the issue of Zilvanis's motivation and the frequency in which he attended the claimant's home, and frequency with which he made attacks on the first claimant in particular. They also amounted to the highest point analysis of the Secretary of State in a fundamental way. My learned friend's approach to credibility was that that was not an issue for the purposes of the certification hearing, and so if that evidence fell to be admitted, it altered the high point analysis, and that has ripple effects in three areas in my Lord's reasoning. First of all, on the issue of the relevance of the expert evidence -- whether Dr Galeotti had mis-characterised the case as being one of personal vendetta with no great motivation apart from something more broad and systemic. Secondly, on the issue of sufficiency of protection on the facts, and thirdly, on the issue of internal flight. We say that is history on reception of post-decision evidence -- and I mean post latest decision evidence -- which follows if my Lord follows the ZL approach and stands in the shoes of the Secretary of State and applies a correct standard to the certificate. It is an extension of Turgut contemplated by Richards J in Razgar, we respectfully say. My Lord, the fourth broad ground upon which we seek leave to appeal is reasons. My Lord says that the reasons provided were that there was no real prospects of success. We say that given the modern law of reasons and developments in that area, that that is not an adequate basis for the certification because (inaudible) on the issues of credibility. We did not know until the hearing whether credibility was going to be taken as a point against us on the certificate. We knew it would be taken against us on the substantive claim, but not on the certificate. So it would help everybody if there was more than an anodyne paragraph in the certification letter saying:
"for all these reasons we think the claim is clearly unfounded"
. I am giving the Secretary of State more than he deserves, as it were. He does not even say:
"for all these reasons"
. MR JUSTICE MAURICE KAY: There is a first time for everything Mr Hussain. MR HUSSAIN: But he does not even say that. There is a bare assertion that:
"your claim is clearly unfounded"
. We do not know which aspect of the issues taken with the substantive claim were found in the certificate. My Lord, those are my respectful submissions. MR JUSTICE MAURICE KAY: Thank you very much. Miss Stern, I am provisionally disposed to give permission in relation to the law on sufficiency of protection. I have no doubt this court has not heard the last of the arguments that began in this case. It may be of assistance if it is resolved on high; do you oppose that? MISS STERN: My Lord, I do oppose that on the basis that your Lordship's judgment is consistent with all the authority on the point. It is the conclusion to which one is inevitably drawn when one considers the authority. I clearly was not here to hear the argument or to know how it was put, but when one looks at the way in which your Lordship has put it, it is an entirely unsurprising conclusion given the clear authority emanating from Horvath, Dhima and Krepel. MR JUSTICE MAURICE KAY: If you had been here you would have heard that in fact Mr Hussain's approach to it embraces rather more than is to be found in this judgment because I was persuaded by Ms Giovannetti's submission that there is a rather simple, unbroken line of authority that solved the problem. I think I shall grant permission in relation to that issue. I am unimpressed by the other matters raised because it seems to me that one way or another they have either been resolved, or the factual matrix of this case lends me to believe that it may not be an appropriate case in which to pursue those matters. MISS STERN: My Lord, in the light of your Lordship's views I will not address you on any of those other points. All I really can say is that we are entitled to our sufficiency of protection point, but if that is the only point on which your Lordship is minded to grant permission, could I simply ask that that is expressed in the order for permission. MR JUSTICE MAURICE KAY: Yes, it will be. MISS STERN: I am grateful. MR JUSTICE MAURICE KAY: What I will do, Mr Hussain, is grant you permission in relation to what I call Ground 2 in this judgment, but not otherwise. MR HUSSAIN: I am most grateful, My Lord. May I ask for detailed assessment of my publicly funded costs? MR JUSTICE MAURICE KAY: Certainly. MISS STERN: My Lord, I have one very simple application and that is that an electronic version of the judgment be supplied, if possible. It certainly makes communication very much easier for those instructing. MR JUSTICE MAURICE KAY: Certainly. MR HUSSAIN: No order so far as costs are concerned. MR JUSTICE MAURICE KAY: None has been sought? MISS STERN: No. MR JUSTICE MAURICE KAY: Thank you both very much.

Cited in 1 later judgment