The decision


SY (Israel/Jewish and Muslim marriage/risk /protection) Israel [2004] UKIAT 00132


Date of hearing: 4 March 2004
Date Determination notified
27 May 2004


Mr C P Mather (Vice President)
Mr A A Lloyd, JP
Mr C P O’Brian



Secretary of State for the Home Department

For the appellant : Ms U. Miszkiel, counsel, instructed by J R Immigration Consultancy
For the respondent : Mr D.W. Saville, Home Office Presenting Officer

1. The appellant is a citizen of Israel. She appeals the determination of an Adjudicator (Mr J.K. Stanford) promulgated on 7 July 2003. In that determination the Adjudicator dismissed, on both asylum and human rights grounds, the appellant's appeal from the decision of the respondent, made on 4 December 2002, to refuse leave to enter following the refusal of her asylum application. The respondent indicated that he proposed to give, or had given, directions for the appellant's removal to Israel.

2. The appellant’s permission to appeal was on Article 3 grounds only, on the basis of a possible inadequacy in the Adjudicator's determination when he came to consider risks on return. Those risks are said to arise from the particular nature of the appellant and her family. Miss Miszkiel did not seek to argue that the risk would amount to persecution.

3. The appellant is Jewish and was born in Azerbaijan on 23 December 1949. She is married to a Muslim, also from Azerbaijan. They had met and lived together in Azerbaijan. They married in 1990. There are two children of the family. The appellant's husband is their father and their mother was his first wife, now deceased. The appellant refers to them as her son and daughter. In Azerbaijan they suffered harassment because of their mixed marriage. There was a serious incident in July 1993 when their, then three year old, daughter was kidnapped. As a result of all that, they left Azerbaijan and moved to live in Israel. They settled in Haifa.

4. Although all four are now in the United Kingdom, they did not all come here together. The appellant's husband and daughter arrived first in 1999. Their son had been involved in a serious road traffic accident and the appellant remained behind whilst he received treatment in hospital. The appellant's husband made an application for asylum which was refused. That refusal was before 2nd October 2000. He therefore has an outstanding right to make an application to the respondent on the basis that the decision to return him was taken in breach of his human rights. We do not know where removal directions in respect of the appellant's husband were, or would be, to.

5. When the appellant arrived, on 23 March 2001, she also made an application for asylum which was refused. The Adjudicator dealt with her appeal on the basis of both asylum and human rights.

6. The appellant's husband has made an application under the respondent's recent concession. On the face of it he may be entitled to benefit from that concession. Mr Saville was not able to indicate whether he would, because he was not aware of whether any of the excluding factors were present.

7. Miss Miszkiel started by making two applications. First, she asked for this appeal to be adjourned on the basis that the respondent had not yet considered the application under the concession. She had to concede that the application was only made about one week before. She suggested that it would be a waste of resources to go ahead and decide this appeal now when it seemed likely that the appellant's husband (and therefore the family) would benefit under the concession.
8. Her other, alternative, application was to renew an application for permission to appeal the Article 8 findings. This was because of a new factor, i.e. the application under the concession. She argued that if we were to consider Article 8, and whether it would be proportionate to remove the appellant, one of the matters to be taken into account in the assessment of proportionality would be the serious possibility that her husband was going to succeed under the concession. Mr Saville was neutral about the question of an adjournment but opposed the amendment to allow us to consider Article 8. He said that by so doing we would effectively be making the decision as to whether the appellant's husband was going to be successful in his application. That is a matter which the respondent was entitled to deal with.

9. We discussed both the applications in the absence of the parties and refused them. In doing so we bore several things in mind. The appellant, her husband and the two children are a family unit, and Mr Saville undertook that the appellant would not be removed from the United Kingdom before the application under the concession was dealt with. Second, because the appellant, her husband and two children are a family unit there is no realistic possibility that they would be separated on removal by the respondent. Whatever the outcome of this appeal, their position is safeguarded because the appellant's husband, who appears to be a dependant in her appeal as well, still has the outstanding right to make a human rights application. If Miss Miszkiel was right, and the respondent's concession can in some way be a factor in an Article 8 claim, that is something which has arisen since the decision. The appellant would be entitled to make a fresh application to the respondent on that basis. Also, the question of safety on return is a discreet issue quite separate from any Article 8 considerations and the concession. If we were to find against the appellant on the appeal under Article 3, that does not impact on the issues raised by Miss Miszkiel. Finally, the concession is outside the rules and is not a matter for us. We are by no means persuaded that it would be an appropriate factor to consider in an Article 8 claim.

10. We went on to consider the Article 3 claim. The appellant and her husband are in a mixed marriage. Neither party has been able to find anything in objective evidence about Israel concerning mixed marriages of this nature. We had the US State Department Report, published on 31 March 2003, and a separate US State Department Report on religious persecution, published on 18 December 2003. The only reference to mixed marriages is contained in the first paragraph of Section 1 of the latter report where it says: ‘Non-Jews (usually Christians) who immigrated to the country of their Jewish relatives, often are counted as Jews for statistical purposes.’ Although that is not on point, it is the only reference there is.
11. The appellant's application for asylum was as a result of previous events which had occurred in Israel. The appellant and her husband seem to have arrived there in 1993 and had no difficulties at first. Her husband says he lost his job for no apparent work related reason. He believes it was because he is a Muslim. He was unable to find another. He found that he was turned away when he showed a passport which showed he was both Azerbaijani and a Muslim. He was told he should not work with Jews. Sometime thereafter the family started receiving telephone calls telling them that they had no right to live in Jewish society. The appellant said that on one occasion she was threatened with death if she did not divorce her husband. The frequency of the calls increased until they were coming daily and the appellant began to recognise three or four different men. This continued until 1999.

12. The appellant said that they also received letters. There were twelve but she was frightened to keep them and has burned them. The children found that their neighbours mocked them and called them Arabs. The neighbours’ children were discouraged from playing with them. As a result of all this they decided to move to an Arab village.

13. Thereafter, in April or May 1999, the appellant was assaulted by two men in a supermarket. They asked her why she was not covering herself up if she was a Muslim. They took her money, her bag and hit her. The police were called but, because she could not identify the perpetrators or prove anything, they did not take any action. The appellant claims to be scared of the police because she is married to a Muslim. She feared that they would start to investigate him if she reported anything. Thereafter the appellant's family received calls at the door, three or four times a week, at night, but they never answered.
14. There was an incident in June 1999 when the appellant's son was injured in a car accident outside his school. He was hit by a car which did not stop. The appellant believes, but the Adjudicator did not accept, that there was a link between that accident and the previous threats. She had received a telephone call earlier that morning from a man whose voice she recognised, saying that ‘something will happen if you do not do what we say’. Apart from the claimed link between the car accident, and previous incidents, the Adjudicator accepted the appellant's evidence.

15. The question of whether there is such risk on return as to put the United Kingdom in breach of the appellant's human rights if she were to be returned, poses a number of questions. First, was the Adjudicator correct to conclude that the threshold to engage Article 3, had not been reached by the incidents arising before the appellant left. Second, if yes, can that be an indication of a real risk of similar problems in the future, if she were to return. Third, would there be any other reason for the appellant to be ill-treated in that way? Fourth, whether, the perpetrators of any such acts being non-state actors, there is sufficient protection within the meaning of Horvath [2000] ImmAR 205 and Bagdanvicius [2003] EWCA Civ 1605. Finally, if not, are there any internal flight options or, strictly, this being an Article 3 assessment, is the situation the same throughout Israel.

16. There is very little by way of objective evidence to assist us. We have already referred to the very short reference to mixed marriages contained in one sentence of the US State Department Report on religious persecution. That report also says:

‘Relations among religious groups – between Jews and non-Jews, between Muslims and Christians, and among the different streams of Judaism – often are strained. These tensions have increased significantly since the start of the Intifada in October 2000 and again during the period covered by this report, due primarily to Palestinian terrorist attacks, mostly in the form of suicide bombings and Israel Defence Force (IDF) actions in the Occupied Territories, all of which resulted in some impediments to religious practice.’

17. Later on in the report, it says:

‘The government states that it is committed to grant equal and fair conditions to non-Jewish citizens – which constitute approximately 20% of the population and who are predominantly Israeli Arabs – particularly in the areas of education, housing and employment. However, the government does not provide non-Jews with the same quality of education, housing, employment and social services as Jews. On a per capita basis the government spends two-thirds as much on non-Jews as Jews. Although such policies are based on a variety of factors, they reflect a de facto discrimination against the country’s non-Jewish citizens.’

18. Later in the report, under the heading ‘Societal Attitudes’ the report says:

‘Tensions between Jews and non-Jews are the result of historical grievances, cultural and religious differences, and are compounded by governmental and societal discrimination against Israeli Arabs. They have been heightened by the Arab Israeli conflict and it increased significantly during the period covered by this report, due primarily to Palestinian terrorist attacks, mostly in the form of suicide bombings and IDF actions in the Occupied Territories ...’

19. No other material was produced to us to assist in considering the situation for those in a Jewish/Muslim mixed marriage. We asked whether the fact that the appellant's husband is a Muslim, but not an Arab, might make any difference to the situation. There is no objective evidence about that but Miss Miszkiel suggested he could be worse off because he is less likely to be accepted in Muslim areas, which are predominantly Arab, than if he were an Arab.

20. She also asked us to accept that the treatment which the appellant received whilst in Israel was sufficient to amount to inhuman or degrading treatment. In any event, she argued that since the appellant left Israel there has been the attack on the World Trade Centre, the Intifada and now the erection of the wall, all of which will have made matters more tense rather than less.

21. We do not find that the Adjudicator has made any error of law in finding that the conduct to which the appellant was subject whilst in Israel does not, taken cumulatively, amount to treatment which reaches the threshold of Article 3. We are aware of the authorities referred to by Miss Miszkiel and in particular the East African Asians (1981 EARR 76) where it was decided that degrading treatment is treatment ‘that lowers a person in rank, position, reputation or character, whether in his own eyes or in the eyes of other people’. We are also aware of decisions which have found that in some contexts one punch can be sufficient to amount to persecution. However, there are any number of authorities which serve to illustrate that the threshold required to engage Article 3 is very high. On the accepted evidence (which excludes the appellant's view that her son was deliberately injured) we are not satisfied that the experiences of the appellant in Israel would reach such a threshold. This conclusion was open to the Adjudicator.

22. From such objective material as we have, it seems to us reasonably likely that if the appellant were to return to Israel she would suffer treatment at least as bad as that which was directed at her before she left. We note Miss Miszkiel’s submission that the general situation is now a great deal more tense. She argued that now there is a real risk that she could be subject to the treatment which would engage Article 3 were she to be returned. She has been subject to one direct incident of violence and a number of threats. It is not an indication that the problems in the future could not be more serious. We bear in mind that the situation in Israel is now tense and that there is a considerable antipathy between many Jews and Muslims. The appellant is in a mixed marriage and it is not unreasonable to consider that there are Muslims or Jews who would consider parties to such mixed marriages to be legitimate targets for ill-treatment because of their marriage. It is for the appellant to establish that she is at real risk. She has not produced evidence of that, merely argued that it is likely - her appeal is based on speculation.

23. Even if she had been able to establish a real risk, the question of adequacy of protection needs to be addressed. Mr Saville argued that the police did attend when the appellant was assaulted in a supermarket but could not do anything because she could not identify her attackers. The same would apply had she suffered a similar attack here. We are conscious of the sufficiency of protection considerations in Horvath, which were quoted by the Adjudicator as follows:

‘There must be in force in the country in question a criminal law which makes the violent attacks by persecutors punishable by sentences commensurate with the gravity of the crimes. There must be a reasonable willingness by the enforcement agencies, that is to say the police and the courts, to detect, prosecute and punish offenders. It must be remembered that inefficiency and incompetence is not the same as unwillingness, unless it is extreme and widespread. There may be many reasons why criminals are not brought to justice including lack of admissible evidence even when the best of endeavours are made; they are not always convicted because of the high standard of proof required, and the desire to protect the rights of accused people.’

24. Horvath, as is well known, speaks not only of the availability of protection but the willingness to apply it. Mr Saville referred us to Bagdanvicius [2003] EWCA Civ 1605 which confirms that the tests in Horvath apply in an Article 3 case as they do in refugee case. There are a number of comments to be found in the section of the judgment entitled ‘Summary of Conclusions on Real Risks/Sufficiency of protection’. Dealing with this, Auld LJ said at paragraph 55(5) of Bagdanvicius:

‘The effectiveness of the system provided is to be judged normally by its systemic ability to deter and/or prevent the form of persecution of which there is a risk, not just punishment of it after the offence.’
25. And at paragraph 55(6):

‘Notwithstanding systemic sufficiency of state protection in the receiving state, a claimant may still have a well-founded fear of persecution if he can show that its authorities know or ought to know of circumstances particular to his case giving rise to his fear, but are unlikely to provide the additional protection his particular circumstances reasonably require.’

26. And at paragraph 55(7)

’12. An assessment of the threshold of risk appropriate in the circumstances to engage Article 3 necessarily involves an assessment of the sufficiency of state protection to meet the threat of which there is such a risk – one cannot be considered without the other whether or not the exercise is regarded as “holistic” or to be conducted in two stages.

13. Sufficiency of state protection is not a guarantee of protection from Article 3 ill-treatment anymore than it is a guarantee of protection from an otherwise well-founded fear of persecution in asylum cases – nor, if and to the extent that there is any difference, is it an eradication or removal of risk to exposure to Article 3 ill-treatment.

14. Where the risk falls to be judged by the sufficiency of state protection, that sufficiency is judged, not according to whether it would eradicate the real risk of the relevant harm, but according to whether it is a reasonable provision in the circumstances.

15. Notwithstanding such systemic sufficiency of state protection the receiving state, the claimant may still be able to establish an Article 3 claim if he can show that the authorities there know or ought to know of particular circumstances likely to expose him to a risk of Article 3 ill-treatment.

16. The approach is the same whether the receiving country is or is not a party to the ECHR but, in determining whether it would be contrary to Article 3 to remove a person to that country, our courts should decide the factual issue as to risk as if the ECHR’s standards apply there ...’

27. The appellant said that she was unwilling to ask for state protection because she was frightened that the authorities would then start to investigate her husband, because he is a Muslim. We do not accept that as a good reason for having not sought state protection in the past. The appellant has not demonstrated a failure by the authorities to offer her adequate protection in the past. She has not offered any objective evidence to suggest that the authorities are unwilling or unable to offer her protection. There is a competent police force and other protection agencies. There is no evidence of serious discrimination or unwillingness to help anybody such as the appellant, a Jewish Israeli citizen. Twenty percent of the population is not Jewish and the appellant has produced no objective evidence that the authorities are unable to unwilling to adequately protect them.

28. In coming to this conclusion, we recognise that mixed marriages between Muslims and Jews in Israel must be relatively rare, even though we have not been provided with any statistics.

29. From all that we have set out, we have concluded the appellant has not established there is a real risk that if returned to Israel she would be subjected to treatment sufficiently serious to engage Article 3 ECHR. In any event, we are not satisfied, having taken into account Horvath and Bagdanvicius, that there is not adequate protection available from the non-state actors who the appellant fears. For the reasons which we have set out, the Adjudicator’s finding that there is no real risk on return is sustainable. There is no need for us to go on and look at internal relocation.

30. The appeal is dismissed.