Koller v Secretary Of State For Home Department

Permission for a further appeal from the Immigration Appeal Tribunal will ordinarily be refused where a properly reasoned determination identifies the correct law, states the facts clearly and applies that law to those facts. The approach remains subject to anxious scrutiny where fundamental rights are at stake.

For persecution by non-state agents, sufficient state protection exists where the country of origin has a criminal-law system under which the relevant violence is punishable and its law-enforcement agencies show a reasonable willingness to enforce that law. Whether this standard is met is a fact-sensitive question for the specialist tribunal.

A Czech Roma man sought permission to appeal from an Immigration Appeal Tribunal determination dated 5 February 2001. The tribunal had dismissed his appeal from a Special Adjudicator, who had upheld the Secretary of State’s refusal of asylum. His claim relied on discrimination, attacks by skinheads and alleged police violence.

The tribunal found that the Czech Republic was taking action against racist violence and could provide sufficient protection. The proposed appeal was filed late. It contended that the applicant had arguably experienced a failure of state protection against non-state persecution.

The three-judge court also considered the proper approach to applications for a further appeal from a specialist immigration tribunal.

1. Application dismissed unanimously. Brooke LJ held that the proposed appeal raised no point fit for a third appeal. Tuckey and Laws LJJ agreed. The merits did not justify extending the time for filing the application.
2. The governing principles concerning persecution by non-state agents were those stated in Horvath v Home Secretary [2000] 3 WLR 379. Ill-treatment amounts to persecution only where its severity is accompanied by a failure of state protection. The Convention standard is satisfied where the country of origin has a criminal-law system making the relevant violence punishable and the law-enforcement agencies have a reasonable willingness to enforce it.
3. The sufficiency of protection was a fact-sensitive matter for the expert tribunal. The tribunal had found from the objective evidence that the Czech state was acting against attacks on Roma, controlling skinheads and prosecuting offenders. Authorities decided on particular facts did not establish new principles or provide substantial assistance merely because dicta from them could be transferred to another factual setting.
4. Brooke LJ declined to treat the Immigration Appeal Tribunal as directly comparable to the Social Security Commissioners considered in Cooke v Secretary of State for Social Security [2001] EWCA Civ 734. Immigration appeals frequently involved complex facts, developing law and determinations of variable quality.
5. Nevertheless, a properly reasoned and well-structured Immigration Appeal Tribunal determination would normally end the proceedings unless the applicable law was uncertain. The Court of Appeal would be reluctant to permit a second appeal where the tribunal correctly stated the legal principles and facts before applying the law. Adjudicators and tribunals should state the principal issues and reasoning concisely enough to permit effective appellate review.
6. That restrained approach remained subject to the anxious scrutiny required in cases affecting fundamental rights, as recognised in Bugdaycay v Secretary of State for the Home Department [1987] AC 514.

1. Court of Appeal (Civil Division): The application for permission to appeal was dismissed unanimously, and time was not extended: [2001] EWCA Civ 1267.
2. Immigration Appeal Tribunal: On 5 February 2001, the tribunal dismissed the applicant’s appeal from the Special Adjudicator. It subsequently refused permission to appeal.
3. Special Adjudicator: On 9 October 2000, the adjudicator dismissed the appeal against the refusal of asylum, finding that the Czech state could provide sufficient protection.
4. Secretary of State: By letter dated 15 February 2000, the applicant’s asylum claim was refused.