The decision

Appeal No:

MH (Sufficiency of Protection –Roma - Svazas) Czech Republic CG [2002] UKIAT 01845


Date of Hearing:
23 April 2002
Date Determination notified:
7 June 2002


The President, The Hon. Mr Justice Collins
Mr. P. R. Moulden
Mr. J. R. A. Fox

Miroslav HRBAC

Secretary of State for the Home Department

For the Appellant:
Mr. S. Symonds, R.L.C.
For the Respondent:
Miss Lisa Govannetti, Counsel.


1. The appellant is a citizen of the Czech Republic. He originally claimed asylum when he came to the United Kingdom in June 1999. Before any decision was made, he returned to Prague on 4 November 2000 because his father had suffered a heart attack and was seriously ill. His claim accordingly lapsed. He returned to this country on 16 November 2000 and again claimed asylum. Following interview, his claim was refused on 22 November 2000 on both asylum and human rights’ grounds. On 2 February 2001, Miss. A. L. Sawetz, an adjudicator, dismissed his appeal.

2. His appeal to the Tribunal has taken a long time to be heard. When leave was initially given, two important points appeared to require decision. The first was whether the concept of sufficiency of protection applied to Articles 3 and 8 of the European Convention on Human Rights as well as to asylum cases. The second was whether a racial motive for ill-treatment could of itself mean that Article 3 was breached when otherwise it might not have been. The first of those issues was effectively decided by the Tribunal in Kacaj. The second remained outstanding, but it is far from clear what caused the subsequent delay. It was intended that the decision be starred, but it is our view that, although the issue is important, it is unnecessary to give it starred status. This is partly because the starred decision in Devaseelan has set out the principles and partly because the issue may not arise directly on the facts so that any resolution could arguably be unnecessary. However, we do propose to deal with it and, since this is a tribunal comprising legally qualified members chaired by the President, would expect it to be given due weight.

3. The appellant is not himself a Rom but he has been living with a partner who is. She is described by him in interview as his wife. It is not clear whether there has been a formal marriage, but that matters not since it is accepted that they were living as husband and wife. Unfortunately, since they have been in this country, the relationship has broken down and they are not at present living together. She has made a claim for asylum in her own right but we have no information from either party what has happened to that claim. There is a child who is now 6 or 7 months old whose birth seems to have triggered the separation since that is the period during which they have been apart. We were told that the appellant had seen his son and spoken to his partner on the telephone from time to time. He was hoping that there might be a reconciliation, she was apparently not particularly receptive to his overtures.

4. It was suggested that we should consider this appeal on two hypotheses, namely that there would be a reconciliation and that there would be none. We could then consider the position if return is of both to live together or of the appellant to live apart from his partner. We bear in mind, however, that if there is a reconciliation arguments may be raised if his partner’s claim is allowed that Article 8 might prevent his return. Article 8 may also be raised if he wishes to maintain contact with his son. We are restricted by s.77(4) of the 1999 Act to considering Article 8 in the light of the position which existed when the appellant’s claim was refused in November 2000. There was then no son and he and his partner were still living together. Thus reconciliation or no could only effect the asylum or Article 3 claims, and to those it would have less relevance. In any event, as will become apparent, the result of this appeal will be the same whether or not there is a reconciliation and so it is convenient to consider both possibilities.

5. The appellant was accepted by the adjudicator as a credible witness and so his account of what had led him to leave the Czech Republic and claim asylum was believed. His difficulties started in February 1998, when he started his relationship with his partner. He suffered harassment from the police on a regular basis, being stopped and searched some two or three times a week. It was the same police officers who figured most prominently in this harassment, both of whom made a point of removing their caps to disclose that their heads were shaven. A swastika was scratched on his car. In December 1998 he was attacked by a gang of 10 to 15 skinheads, and beaten with baseball bats; his front tooth was damaged when he was hit by a knuckleduster. He and his partner were subjected to racial abuse and suffered discrimination. On one occasion when he was stopped by the police, one of the police officers with a shaven head had dealt with him very brutally, dragging him from his car while a pistol was held to his head. He had been accused on this occasion of driving a stolen car. When he returned to the Czech Republic after his father's heart attack, he was again stopped and searched on one occasion.

6. The adjudicator decided that what the appellant had described was not serious enough to reach the threshold of persecution nor did it breach Article 3 of the European Convention on Human Rights. Furthermore, there was in place a system which would provide sufficient protection in accordance with the test laid down by the House of Lords in Horvath. Insofar as the police officers were stopping and searching the appellant for no good reason or were guilty of excessive brutality, they were not acting in accordance with their duties but were misusing their powers.

7. Subject to the argument that the racial motive can produce a breach of Article 3, we are satisfied that the adjudicator was correct to regard the actions of the police as not amounting to persecution or being sufficiently serious to breach Article 3. It was no doubt thoroughly irksome, but the appellant never suffered any physical violence at their hands. But even if it could be said to have crossed the threshold, the objective evidence of the measures taken by the state to deal with violence towards and discrimination against Roma show that there is in place a system which does provide in general a sufficiency of protection. The most recent US State Department Report comments:-

“At times police failed to take sufficient action in cases of threats or attacks against Roma; however, there was evidence by year’s [2001] end that the police were treating cases of violence against Roma more seriously than in the past”.

8. It is noted that in practice, Roma face discrimination in such areas as education, employment and housing. But positive steps are being taken to deal with the discrimination: see section 5 of the Report. However, we recognise that there is still an attitude of mind which results in discrimination against and on occasions violence towards Roma (or those such as the appellant who are regarded as betraying their own race by living with a Rom) and that the government measures are not as effective as they should be. Nonetheless, the will is there and it is impossible ever to guarantee safety from attacks by individual elements. The same point may be made in respect of some parts of the United Kingdom where racial violence has manifested itself. The position in the Czech Republic is such that it will in our view be impossible for a Rom 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.

9. We recognise that the appellant fears further harassment from rogue police officers. The Court of Appeal has recently considered the Horvath test in relation to such as police officers who are those representing the States from which protection would normally be expected: see Svazas v Secretary of State for the Home Department C/2001/1964 31 January 2002. The majority of the Court (Simon Brown LJ and Sir Murray Stuart-Smith) confirmed that the Horvath principle applied whether non-state agents or State agents who were acting wrongly were involved. However, the ability and willingness of the State to provide the necessary protection must be more clearly demonstrated in the case of misconduct by officials of the State; a higher standard of protection is required. At paragraph 54, Simon Brown LJ observed:-

“… one must clearly recognise that the more senior the officers of State concerned and the more closely involved they are in the refugee’s (sic) ill-treatment, the more necessary will it be to demonstrate clearly the home State’s political will to stamp it out and the adequacy of their systems for doing so and for punishing those responsible, and the easier will it be for the asylum seeker to cast doubt upon their readiness, or at least their ability, to do so”.

10. The police officers concerned were ordinary officers and no complaint was made by the appellant or his partner to senior officers. There is no reason to believe that such harassment would have been condoned; indeed, the contrary is the case if it was shown that it was indeed unwarranted and carried out only because of the appellant’s connection with a Rom.

11. We have already expressed our agreement with the adjudicator that what the appellant has suffered is not sufficiently serious to breach Article 3. Does the expressed racist motive behind it mean that it should nonetheless be regarded as degrading treatment falling within Article 3? Mr. Symonds relied particularly on the decision of the Commission in the East African Asians case (1973) 3 EHCR 76. After indicating that a ‘certain level of treatment which was degrading in that it ‘grossly humiliated’ a person ‘before others or drove him to act against his will or conscience’ (Paragraph 195), the Commission considered the effect of the Commonwealth Immigrants Act 1968 which it found to have had racial motives. Its conclusions are set out in Paragraphs 207 to 209 as follows:-

“207. The Commission has stated above (Paragraphs 201 and 202) that the legislation applied in the present cases discriminated against the applicants on the grounds of their colour or race. It has also confirmed the view, which it expressed at the admissibility stage, that discrimination based on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 of the Convention (See Paragraph 196, supra).

The Commission recalls in this connection that, as generally recognised, a special importance should be attached to discrimination based on race; that publicity to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity; and that differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when differential treatment on some other ground would raise no such question. (See the Commission’s decision on the admissibility of the applications in Group 1 – App II to this report).

208. The Commission considers that the racial discrimination, to which the applicants have been publicly subjected by the application of the above immigration legislation, constitutes an interference with their human dignity which, in the special circumstances described above (Paragraphs 203 – 206) amounted to ‘degrading treatment’ in the sense of Article 3 of the Convention.

209. It therefore concludes, by six (In addition, two other members of the Commission, who were not present when the vote was taken, expressed their agreement with this conclusion) votes against three (Vote taken on 11 October 1971) votes, that Article 3 has been violated in the present cases”.

12. In Deevaseelan at Paragraphs 117 to 124 the Tribunal considered the effect of the East African Asians case. In short, it decided that the treatment must be degrading for it to come within Article 3 and that discrimination cannot render such treatment degrading if it would not otherwise be so. The East African Asians case was unusual in that there was a government policy which deliberately treated the East African Asians in a way which was different and less advantageous because of their race. Racist taunts and abuse will be part of the treatment and will be taken into account in deciding whether the treatment overall is degrading. But discrimination as such, in that the treatment may be directed at one group of people rather than another, cannot in our view tip the balance. Furthermore, racism displayed by individuals which is not condoned or accepted by the State will not, however unpleasant, be within Article 3 unless the State cannot or does not provide the necessary protection. So in this case the racist motives behind the treatment do not create a breach of Article 3, since overall what was suffered did not cross the threshold. In the end, we come back to the underlying consideration that the tests under the Refugee Convention and Article 3 of the European Convention on Human Rights are the same in all respects material to this case.

13. Accordingly, we are satisfied that the appellant has not established his case under either Convention. It must be obvious that, if there is no reconciliation, any risk will be less since (although we presume he will keep in touch if only to see his son) he will not be living with a Rom. It follows that this appeal is dismissed.

Sir Andrew Collins