D v Secretary of State for the Home Department (Czech Republic) [2003] UKIAT 00188 (30 October 2003) [2003] UKIAT 00188

UKIAT
D v Secretary of State for the Home Department (Czech Republic) [2003] UKIAT 00188 (30 October 2003)
[2003] UKIAT 00188 · 2003-10-30
[1]APPEAL No. [2003] UKIAT 00188 D (Czech Republic) IMMIGRATION APPEAL TRIBUNAL Date of hearing: 29 October 2003 Date Determination notified: 30 October 2003 Before Mr Andrew Jordan Mr D.R. Bremmer JP Mr Andrew Jordan Mr D.R. Bremmer JP Between D APPELLANT and Secretary of State for the Home Department RESPONDENT For the claimant: Mr R. O'Bryan, counsel For the Secretary of State: Miss N. Hough, HOPO DETERMINATION AND REASONS The claimant is a national of the Czech Republic. The Secretary of State appeals against the decision of an adjudicator, Dr A.E. Thorndike, following a hearing on 21 February 2003 allowing the claimant's appeal both on asylum and human rights grounds against the decision of the Secretary of State to refuse both claims.[2]The claimant is a Czech Roma born on 17 March 1963. He married a non-Roma. He arrived in the United Kingdom, alone, on 27 April 2002 and was given six months leave to enter as a visitor. He claimed asylum on 8 May 2002.[3]The adjudicator found that the claimant's problems started in 1996, some six years before his eventual departure, when he was attacked by skinheads with a baseball bat which resulted in injuries, including a broken spine, requiring his spending the next 11 months in hospital. In September 1998, whilst attending a meeting of a Roma organisation, the SRCR, he was attacked again and lost two teeth in the assault. In 1999, the claimant was assaulted at the police station when he sought to complain about an attack upon his wife. On 1 May 2000, an event organised by the SRCR was disturbed by an attack carried out by about 30 skinheads. In the summer of 2001, he and his family were chased off by a group of German skinheads. In September 2001, whilst complaining about Roma children and denied access to the local swimming pool, the claimant was arrested, and abused and refused food. Finally, in November 2001 he was arrested again, (with his wife), accused of stealing from a shop and assaulted in his cell. On the same day, he was abducted by the police and taken to a forest where some skinheads were waiting to beat him up.[4]In 1997, his daughter was attacked outside school and, later, refused admission to a cinema in circumstances that suggest there was clear racial discrimination. In 1999, his wife, who is not a Roma, was attacked and abused.[5]On occasions when he called upon the police to pursue those responsible for the attacks upon him, his efforts proved fruitless and he was not able to obtain any redress by approaching the SCRC.[6]The position of Czech Roma has been considered on the number of occasions in recent years by the Tribunal and the Court of Appeal. The first in point of time is the decision of the Tribunal in Havlicek (01/TH/01448) (Collins J., President), decided in April 2000. This was a case that concerned a young man who was not himself Roma but whose wife had a Roma father. The adjudicator accepted that the claimant might well have attracted a greater degree of hatred from skinheads and other racial elements in Czech society because he had married someone who was regarded as Roma. The Tribunal did not consider it a surprising conclusion of the adjudicator that those who have racist tendencies often seem to regard a mixed marriage as beyond the pale. In paragraph 13 of the decision, the Tribunal stated:
"We did seriously consider whether, in the light of the steps which had been taken by the authorities in Czech Republic to deal with violence against Roma, it would be possible for any Roma, whatever has happened to him or her in the past, to claim that he or she now had a well-founded fear of persecution. In saying this we recognise that discrimination will undoubtedly continue, but discrimination is not persecution. We have, however, been persuaded that there may be individuals whose past sufferings show that there is a reasonable likelihood of continuing attacks if they were to be returned so that they can properly be said to have demonstrated a well-founded fear of persecution for a convention reason. Such individuals will be few and it may be that as time passes and if the state can show a continuing effort to deal with conduct amounting to persecution no Roma as will be entitled to be regarded as refugees. We do not think that that time has yet come."
[7]The Tribunal, therefore, endorsed the adjudicator's approach to consider the case on its merits. In particular, the Tribunal accepted that a mixed marriage might well make a claimant more of a target of the skinheads who would regard him as a traitor to his race. See paragraph 14. The Tribunal was not persuaded that the adjudicator's conclusions were wrong and emphasised that the case had been decided on its own facts and could not be used as any authority to show that Czech Roma are entitled to be regarded as refugees. Indeed, the contrary is so. A successful claim for asylum by a Czech Roma will very rarely be established.[8]In the case of Puzova (01/TH/0416) , (Mr J. Barnes, Chairman), the Tribunal heard the appeals of several Czech Roma in November and December 2000. In a judgment of some 61 pages, the Tribunal considered whether Czech Roma are entitled to international protection by reason of their ethnicity alone. In paragraph 165, the Tribunal concluded:
"In summary, we are satisfied that any claim that Czech Roma are by reason of their ethnicity alone entitled to refugee status is unsustainable and that each case must be looked at on its own facts to see whether those facts show to the relevant standard that the specific claimant has a well founded fear of persecution for a Convention reason. Following Horvath it is likely that those who can succeed in showing such fear on the basis of feared actions of non-state actors will be the exception since there is currently in place in the Czech Republic a system of criminal law which offers effective protection to Czech citizens generally, including Czech Roma. Applying the appropriate test, none of the appellants succeeds in discharging the burden upon them and each of the appeals before us is dismissed."
[9]In reaching its conclusions, the Tribunal considered the issue of discrimination generally, see paragraphs 141 to 148 as well as skinhead violence. In particular, consideration was given to whether the state was unable or unwilling to provide the level of protection that it was its duty to provide. Accordingly, the Tribunal gave detailed consideration to the attitude of the Czech government in combating abuse against Roma.[10]In Hrbac [2002] UKIAT 01845 , (Collins J., President), the Tribunal considered the case of a Czech citizen who was not himself a Roma but whose partner was. It was as a result of the formation of the relationship in February 1998 that the appellant's problems arose. He regularly suffered harassment from the police who made little attempt conceal their identity with the skinheads. A swastika was scratched on his car. He was attacked by a gang of perhaps as many as 15 skinheads and beaten with baseball bats and knuckledusters. He and his partner were subjected to racial abuse and discrimination. On one occasion, when he was stopped by the police, a shaven headed police officer dragged him from his car and placed a pistol at his head. On that occasion, he had been accused of driving a stolen car. In paragraph 8 of the Tribunal's decision, it is said: "The position in the Czech Republic is such that it will in our view be impossible for a Roma or anyone who has suffered as a result of discrimination against Roma to establish a well-founded fear of persecution. We recognise, of course, that the situation may change for the worse; if it does, any such change will be taken into account.[11]In reaching that conclusion, the Tribunal took into account the US State Department report for the year 2001 which suggested that although, at times, police failed to take sufficient action in cases of threats or attacks against Roma, there was evidence that the police were treating cases of violence against Roma more seriously than in the past. Although Roma faced discrimination in areas of education, employment and housing, positive steps were being taken to deal with discrimination, although changing men's minds and attitudes rendered government actions less effective than they might otherwise have been. The Tribunal also noted the position of those involved in a mixed relationship (where one of the partners was non-Roma) as giving rise to a special difficulty because the non-Roma partner may be regarded as a traitor by white racists. The Tribunal considered the actions of rogue police officers but, applying the Horvath test, decided there was no reason to believe such harassment was condoned by the authorities. Indeed, the contrary was shown. As a result, the Tribunal concluded the claimant had failed to establish the basis of his claim under either Convention.[12]The Court of Appeal revisited the issue of Czech Roma in ZL and VL [2003] EWCA Civ 25 . The evidence before the adjudicator included a report by Dr Chirico, a recently called member of the English Bar who has completed a three-year British Academy Post Doctoral Fellowship at University College London. He has lived and worked in Prague. The Court of Appeal noted that Dr Chirico's report was, in effect, a challenge to the decision of the Tribunal in Puzova . His report suggested(i) that attacks on and harassment of Roma by skinheads in the Czech Republic are growing(ii) that, at local level at least, skinheads often have the support of the police and(iii) the implementation of changes by the police and courts designed to combat racism has been inadequate. The Court of Appeal, however, concluded in paragraph 74 of the judgment that Dr Chirico's report did not undermine the conclusion of the IAT that the Czech Republic provides, in general, a sufficiency of protection. Having considered the appellant's case, the Court of Appeal concluded that the appellant's had failed to establish a claim under either Convention.[13]In reaching its decision, the Court of Appeal considered the observation of the Tribunal in Hrbac that we have set out above in paragraph 8 that it will "be impossible for a Roma or anyone who has suffered as a result of discrimination against Roma to establish a well-founded fear of persecution." The Court warned that this should not be treated as an invitation to rubber-stamp refusals on applications made by Czech Roma:
"Even if, in general, the Czech Republic afford sufficient protection, there must remain a possibility of localised persecution in circumstances where there may be arguments against relocation and, as Collins J. observed, there is always a possibility that the position in the Czech Republic may change."
[14]In paragraph 68 of the judgment, the Court of Appeal endorsed the sentiment that:
"…the stage has not been reached where it is said as a blanket rule of law or as an irrebuttable presumption that no claim raising well-founded fear of persecution or Article 3 on return could be made out."
[15]We consider that the following principles may be derived from these cases:a. The Czech republic provides, in general, a sufficiency of protection for Czech Roma.b. No Czech Roma is, by reason of his ethnicity alone, entitled to refugee status.c. Each case must be looked at on its own facts.d. It will be the exceptional case in which the claimant establishes to the relevant standard a well-founded fear of persecution for a Convention reason on the basis of the feared actions of non-state actors, but such cases will be few.e. The stage has not been reached where it is can be said as a blanket rule of law or as an irrebuttable presumption that no Roma claim can succeed.f. Whilst Roma faced with local discrimination or harassment may be able to re-locate elsewhere with the Czech Republic, an adjudicator should be prepared to consider arguments that relocation is not possible in the circumstances of a particular case.g. There is always a possibility that the position in the Czech Republic may change.h. Parties in a mixed relationship (that is where one party is Roma and the other is not) may be at greater risk.[16]The adjudicator decided that the claimant in the present appeal had two special characteristics: he was in a mixed race marriage and was a recognised Roma activist.[17]It does not seem to us that the mere fact of a mixed marriage or relationship gives rise to a claim. Although the adjudicator allowed the claimant's appeal in Havlicek which was, indeed, a case where his wife's father was Roma, the Tribunal, once again presided over by the President, decided in Hrbac that the appellant, also involved in a mixed relationship, had failed to establish his claim. Mr Hrbac had been discriminated against and subjected to an attack in which the police had placed a pistol at his head. His ill-treatment does not, therefore, obviously fall into a category substantially different from that of the claimant in the instant appeal. There is no compelling evidence that the treatment meted out to the claimant was as a result of his mixed marriage, rather than because he was perceived to be, as the adjudicator found in paragraph 19 the determination, Roma by his appearance.[18]The adjudicator also found that he was a well-known local member of the SRCR. The attack in 1996, however, was before he became involved in the SRCR. The attacks in September 1998 and May 2000 were carried out by skinheads who used indiscriminate violence against those attending the SRCR events. The police were not complicit in the attacks. The events of September 2001 and November 2001 establish a link between the claimant's ill-treatment and his involvement with a Roma organisation. The first incident was when he took the case of Roma children being denied entry to the local swimming pool resulting in his arrest when the manager called the police. The second incident followed his arrest in November 2001 when he was accused of shoplifting. He was released when no evidence was found and the SCRC complained to the police and the shop manager. In each case, the events were only peripherally related to his SCRC involvement. In other words, it is not clear whether being a Roma activist had a significant effect on events. We do not understand the claimant to be saying that he was an official in the organisation.[19]Although the adjudicator identified his mixed marriage and the fact that he was a recognised Roma activist as being special characteristics, it is difficult to see how these factors can be considered exceptional. He gave no reasons why he considered them to be so:
"The appellant has special characteristics. He was in mixed race marriage and a recognised Roma activist. He had been attacked three times by police, most importantly take into a forest for a thorough beating by skinheads in collusion with the police. Anything more blatant was hard to imagine: there was clearly a total failure of protection for him. There was a pattern of persecution, leading him to desperation."
[20]Mr O'Bryan, who appeared on behalf of the claimant, did not argue that, in paragraph 29 of the determination, there were any additional special characteristics other than the fact that the claimant was in a mixed race marriage and was a recognised Roma activist. The other factors set out in that paragraph were, he submitted, merely the consequences of his special position. We do not consider that the adjudicator gave proper consideration to whether the claimant's case was exceptional in accordance with the case law that we have set out above and the principles that can be derived from it. Our conclusion is that the appellant is not an exceptional case.[21]Even if we are wrong on this issue, the adjudicator did not then consider whether this was a local problem faced by the claimant that might be resolved by his moving elsewhere. In paragraph 33 of the determination, the adjudicator said:
"Relocation is not practical as his reputation would follow him. The police were complicit."
[22]The adjudicator does not explain how the claimant's reputation would follow him if he were to move to another part of the Czech Republic. The fact that the local police were complicit in the attacks in September and November 2001 does not mean those events will be replicated elsewhere or that information about this claimant will be circulated to other police forces throughout the country. The claimant's involvement with the SRCR was not of such high profile that the general public or, indeed, the skinheads, will know of his re-location elsewhere. There is no credible evidence that the claimant will not be able to make use of the general sufficiency of protection within the Czech Republic.[23]In Hrbac, the Court of Appeal left open the possibility of localised persecution in circumstances where there might be arguments against relocation. The adjudicator did not consider any arguments against relocation save that relocation was not practical as his reputation would follow him. In our judgment, this finding is unsustainable. In the course of the hearing before us, no convincing arguments were put forward that might suggest the claimant could not find adequate security by moving elsewhere if the position in his home town was untenable. Indeed, Mr O'Bryan relied on paragraph 11 of Dr Chirico's report (found at page 17 of the claimant's bundle) to the effect that the claimant's home in Lovosice, in northern Bohemia, is the location of serious problems with the skinheads since the early 1990s, partly as a result of the general poverty in the area and partly as a result of neo-Nazi groups in nearby Germany. If North Bohemia is particularly difficult for Roma, it would suggest that there are other places where the situation is better. Dr Chirico quotes the UNHCR's Prague liaison officer as suggesting that in such a small country, internal flight is irrelevant. We do not understand how this can be so. If a particular claimant is experiencing difficulties in his local area and those difficulties are not reasonably likely to be replicated elsewhere, relocation is both possible and an effective remedy.[24]Mr O'Bryan did not suggest that relocation would be unduly harsh for this claimant. He confined his submission to stating that a real risk exists throughout the country. For the reasons that we have given, we do not agree. In reply, Miss Hough drew to our attention that Dr Chirico provided a report for the adjudicator in ZL and VL and that, notwithstanding the serious allegations of rape committed by police officers in that case, the Court of Appeal in January 2003 considered that there was a sufficiency of protection in the Czech Republic.[25]Mr O'Bryan did not argue that there has been a general change in the position of Roma within the Czech Republic, the possibility of which is mentioned in paragraph 15 and elsewhere of this determination.[26]In the course of this appeal only relatively limited reference was made to the background material. Miss Hough referred us to paragraph 5.23 of the October 2003 Country Report on the Czech Republic prepared by CIPU. It is there recorded that the national police Academy has introduced a course in Romany language and culture designed to facilitate police officers' improved communication and response to Roma communities within their jurisdiction. The Ministry of Interior has included the issue of extremism in the teaching programmes of police schools at all levels. There is an active effort underway to identify, train and recruit qualified Roma to serve in law enforcement, including a bridging course for those without formal educational qualifications. At paragraph 6.108 of the CIPU Report, it is stated:
"There have been reports of occasional violence or excessive use of force by the police. The International Helsinki Federation report states: "
Unwarranted and unindicted police violence against Roma continued in 2002"; the report quotes one specific incident - the case of a Roma man who died in police custody, apparently in suspicious circumstances… the case file was apparently provided to lawyers only two months after the death and is suspected to have been manipulated. An official investigation into the case is in progress. The European Roma Rights Centre has reported that, on 21 February 2002, a Roma man (Mr B) was physically abused by police officers in Litvinov. The police had been called after Mr B had quarrelled with his daughter and had hit her several times. Mr B was treated in hospital for his injuries which included leading around his neck and ears and his filed a criminal complaint against the police."[27]The adjudicator concluded that the claimant had established a well-founded fear of persecution by reason of his Roma ethnicity. He also found that the claimant was at risk of a violation of his Article 3 rights in that he was at risk of suffering torture, inhuman or degrading treatment or punishment. For the reasons that we have given, we do not consider that the adjudicator's conclusion is sustainable. Accordingly, the appeal of the Secretary of State is allowed. Decision: The appeal of the Secretary of State is allowed. Andrew Jordan Vice President 30 October 2003