Horvath v. Secretary of State For The Home Department

The House of Lords considered the meaning of "persecution" in article 1A(2) of the 1951 Geneva Convention as amended and the role of state protection where persecution is alleged to arise from non-state agents. The court held that the Convention operates on a principle of surrogacy: refugee status is available where the applicant has a well-founded fear of sufficiently serious ill-treatment and the home state is unable or unwilling to provide protection against that ill-treatment. The two-part structure of article 1A(2) (the "fear" test and the "protection" test) must both be satisfied, and consideration of state protection is relevant to whether the ill-treatment alleged amounts to "persecution." Applying that approach the tribunal was entitled to find that Slovak authorities were, on the evidence, able and willing to provide the required protection and the appellant therefore did not qualify as a refugee.

The appellant, a Slovak Roma who claimed asylum in the United Kingdom, alleged a well-founded fear of violent attacks by skinheads in Slovakia and asserted that the Slovak police failed to protect Roma. He sought refugee status under article 1A(2) of the 1951 Geneva Convention (as amended by the 1967 Protocol).

The appeal raised three interlinked issues: (1) whether "persecution" denotes merely sufficiently severe ill-treatment or whether it requires a failure of state protection when the persecutors are non-state agents; (2) the meaning of the phrase "unwilling to avail himself of the protection" and whether that unwillingness must be a fear of persecution for seeking protection; and (3) the standard for judging sufficiency of state protection.

The House of Lords analysed the Convention against its purpose of providing surrogate protection where national protection has failed. It adopted a two-stage analytic approach (the "fear" test and the "protection" test), but emphasised that state protection is relevant to the assessment of whether ill-treatment by third parties amounts to persecution. The court held that the relevant protection standard is practical and realistic: a state must have in force criminal laws penalising the attacks, victims as a class must not be exempt from protection, and law‑enforcement agencies must show a reasonable willingness to prosecute and punish offenders. The tribunal’s factual finding that Slovak authorities met that standard was open to it on the evidence. Accordingly the appellant failed both to establish that his fear amounted to "persecution" within article 1A(2) and, as a consequence, to satisfy the protection limb of the definition.

Appeal dismissed. The House of Lords held that where persecution is alleged to arise from non-state agents the concept of "persecution" in article 1A(2) must be assessed in light of the state's ability or willingness to protect (principle of surrogacy). Both the "fear" and the "protection" tests in article 1A(2) must be satisfied. On the evidence the tribunal was entitled to conclude that Slovakia provided sufficient protection and the appellant did not meet the Convention definition of a refugee.

The Secretary of State refused asylum; the Special Adjudicator dismissed the appellant's appeal on credibility grounds; the Immigration Appeal Tribunal reversed that credibility finding but held the appellant had not shown inability or unwillingness to avail himself of Slovak protection; the Court of Appeal dismissed the appellant's appeal [2000] INLR 15; the House of Lords dismissed the appeal [2000] UKHL 37.