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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bogdan v Secretary Of State For Home Department [2001] EWCA Civ 1473 (4 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1473.html Cite as: [2001] EWCA Civ 1473

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Thursday, 4th October 2001

Thursday, 4th October 2001

1. LORD JUSTICE LATHAM: This is an application for permission to appeal a decision of the Immigration Appeal Tribunal of 22nd June 2001. The tribunal had allowed an appeal by the Secretary of State from a decision of the special adjudicator, who had herself allowed the appeal of Mr Bogdan from the Secretary of State's refusal of asylum. The tribunal itself refused permission to appeal on 13th July and Tuckey LJ refused permission on paper on 11th September. The application is renewed before me today.
2. Mr Bogdan, who is a Roma, is a citizen of the Czech Republic. His complaint upon which his claim for asylum was based was of a history of behaviour towards him not by the State, but by other Czech nationals, which he submitted amounted factually to behaviour which, if it had been perpetrated by State agents, would have amounted to persecution, and that the Czech Republic was either incapable of or unwilling to provide him with protection. In other words it is a case raising the principle of surrogacy, and engages the principles which were discussed by the House of Lords in the case of Horvath v Secretary of State for the Home Department [2000] 3 All ER.
3. The two questions which were essentially raised as a result before both the special adjudicator and the tribunal were whether or not the treatment to which Mr Bogdan had been subjected could properly be described, if perpetrated by State agents, as persecution; and secondly, whether on the facts it could properly be said that the Czech Republic failed or was unwilling to provide protection.
4. The facts relied upon by Mr Bogdan were the general situation in the Czech Republic of discrimination against Roma, and the history over the years of attacks and other behaviour towards the Roma which the police have not effectively, for whatever reason, dealt with. He himself had been unemployed since 1992 and had been dependent on state benefit. In April 1997 Nazi symbols were daubed on his front door. He went out to remonstrate with those who he believed to be responsible and was beaten up. The police arrived, and the skinheads ran off. Mr Bogdan said that one of the policemen said that he should take seriously what, in effect, was a warning to himself, which he interpreted as meaning that he should leave the country. The police returned to make a statement but said there was nothing that they could do. He left for the United Kingdom as a result, where he arrived on 17th June 1993 claiming asylum. However, he returned to the Czech Republic on 24th November 1997.
5. In 1998 his dog was poisoned and his neighbours told him that they had seen a skinhead throw meat over the fence which the dog had eaten. Mr Bogdan traced him to his home and beat him up. In Christmas 1998 two or three skinheads threw a petrol bomb into his kitchen, he extinguished the fire and called the police, who took a statement, but did nothing further. In March 1999 he was attacked and beaten outside his house by five skinheads. The police were called but they could not find his assailants, who had run away. He described another incident in July 1999 in which he said a beer bottle was thrown at his pregnant partner in a shop, but he had no other particulars of that incident at which he had not been present.
6. Mr Bogdan and his family therefore returned to the United Kingdom in August 1999 once more claiming asylum. His application was considered. It was refused in September 1999. He withdrew his appeal in January 2000 and was deported. On his return to the Czech Republic he was arrested and imprisoned for several months in connection with an earlier conviction for fraud arising from selling a television set which he was renting. He was released from prison in August 2000 and within a fortnight of his release he and his family again came to the United Kingdom arriving in September 2000 and seeking asylum (the application in respect of which the proceedings are concerned).
7. The adjudicator, on considering the appeal from the Secretary of State's refusal to grant asylum, did not make any express reference to the case of Horvath, but described the issue which she had to deal with in the following terms:

"I accept that the appellant has suffered as describes and that what he has suffered amounts to persecution, that he has a genuine fear of persecution by skinheads, non-State agents of persecution. The issue that remains is whether such fear is well-founded or whether there is a sufficiency of protection offered by the State authorities in the Czech Republic to make the appellant's fear unfounded."

8. The Immigration Appeal Tribunal concluded that that was an inapt way of setting out the appropriate test as a result of Horvath. It considered that the question of persecution had to be considered in the round as a result of the speeches in Horvath, and that in determining at the end of the day whether there has been persecution there had to be a compound test, firstly relating to the behaviour itself as to whether or not that was sufficient to justify the conclusion that if perpetrated by the State it would have amounted to persecution; then secondly, whether or not there was a failure of protection by the domestic institutions. It concluded that the adjudicator had not adequately considered that second aspect of the matter and had indeed considered it in an inappropriate context, that is when considering whether or not the appellant's fear was well-founded or unfounded; concluded that it was doubtful whether the incidents described by Mr Bogdan indeed would have amounted to persecution; but, more importantly, concluded that the Czech Republic had an appropriate criminal law and court system which was available where appropriate evidence existed, and that the case of Mr Bogdan did not suggest that in relation to the events about which he complained there had been a failure in that system.
9. Mr Waheed, on behalf of Mr Bogdan, submits that the adjudicator was entitled to approach the matter in the way that she did. She was, in concluding that there had been a failure of protection and that therefore (as she put it Mr) Bogdan's fear of persecution was well-founded, simply following in the footsteps of other adjudicators and indeed of other tribunals in other jurisdictions in concluding that the Czech Republic did not, in fact, provide appropriate protection, and therefore Mr Bogdan was entitled to surrogate protection in this country.
10. It seems to me that the Immigration Appeal Tribunal was correct in concluding that the special adjudicator appears to have stated the test in a way which is capable of producing an incorrect result. The question which has to be asked, as the tribunal concluded, was whether or not, looked at as a whole, the behaviour on the one hand and what protection was provided on the other was sufficient to justify the conclusion that surrogate protection in this country was required. The latter is not part of the separate enquiry into whether the asylum seeker has a well-founded fear of persecution.
11. I take the view that the tribunal was indeed correct to doubt whether or not what Mr Bogdan complained of would have appropriately been described as persecution. It seems to me that the tribunal was also correct in concluding that in his case there was no sufficient evidence to justify the conclusion that the State was unwilling or unable to provide protection. The extent of the activities of the skinheads and the circumstances, about which he complained, do not suggest that the police must have been acting in a way which demonstrated that they were unwilling or unable to help him. In my judgment the Immigration Appeal Tribunal correctly directed itself as to law and came to a conclusion which was open to it on the facts. It was, accordingly, entitled to allow the appeal of the Secretary of State, and there is, in my judgment, no realistic prospect of persuading this court to the contrary.
(Application refused; detailed legal aid assessment of the Community Legal Service).