Ivanauskiene's v A Special Adjudicator

In an asylum claim based on violence by a non-state actor, the adjudicator must apply the law in force when the claim is determined. A concession made under a subsequently reversed authority cannot prevent review where the change may have affected the analysis.

State failure to protect may supply the discriminatory element required for persecution for a Convention reason; the aggressor need not personally discriminate. The relevant protection standard is practical, not a guarantee of safety. Where correct application of the law gives a real prospect of a different result, the decision should be quashed and remitted.

The appellant, a Lithuanian citizen, claimed asylum after alleged repeated violence and threats from her former husband and associates. She relied on inadequate state protection and argued that women in Lithuania, or a narrower group of women, could constitute a particular social group.

At the hearing, counsel conceded that there was no Convention reason under R v Immigration Appeal Tribunal ex parte Shah [1998] 1 W.L.R. 74. The Special Adjudicator accepted the risk and inadequate protection, dismissed the asylum appeal, but recommended leave outside the Rules. The House of Lords later reversed R v Immigration Appeal Tribunal ex parte Shah [1999] 2 AC 629. The Secretary of State refused asylum, a fresh claim and exceptional leave to remain; Cresswell J refused judicial review. The central issues were the effect of the intervening authority, the concession, the adequacy and discriminatory character of state protection, and the reasons for the Secretary of State's decision.

1. Disposition. The Court of Appeal allowed the appeal with costs. Cresswell J's refusal to quash the Special Adjudicator's determination and the Secretary of State's decision was set aside. The whole determination was remitted to a different Special Adjudicator, who could consider both the asylum claim and any recommendation for leave outside the Rules. The refusal of exceptional leave was also quashed.
2. Change in law and the concession. Mance and Rix LJJ held that an adjudicator must apply the law as it stands when the determination is made. The House of Lords decision in R v Immigration Appeal Tribunal ex parte Shah [1999] 2 AC 629 had been announced before the determination, and it undermined the concession made under the earlier Court of Appeal authority. The appellant was not bound by that concession. The principle in R v Secretary of State for the Home Department ex p. Robinson [1997] INLR 182 supported the adjudicator's duty to apply Convention jurisprudence to the established facts, irrespective of the arguments advanced.
3. Convention issues. The decision in R v Immigration Appeal Tribunal ex parte Shah [1999] 2 AC 629 required consideration of state discrimination, the possible social group, and causation. Under Horvath v Secretary of State for the Home Department [2001] 1 AC 489, protection is assessed by a practical standard and need not guarantee safety. In the majority reasoning, inadequate state protection could supply the discriminatory element even where the private aggressor was not personally motivated by discrimination.
4. Remission threshold. The threshold was whether there was a real prospect that proper application of the law could produce a different result. That threshold was met. The Court could not resolve the factual question of discrimination in Lithuania itself, particularly on an incomplete evidential record. The matter therefore required fresh consideration rather than dismissal.
5. Secretary of State's reasons. The Secretary of State purported to accept the Special Adjudicator's findings, including the risk of serious violence and inadequate protection, but suggested that the appellant could relocate and obtain assistance. Under R v Secretary of State for the Home Department ex parte Danaei [1998] INLR 124, a clear explanation was required for departing from or substantially reinterpreting those findings. Formulaic reference to the current position was insufficient. The fresh-claim issue was subsidiary once the original appeal was remitted. Schiemann LJ initially took a narrower view, but ultimately did not dissent from the majority's conclusion.

1. Court of Appeal (Civil Division): [2001] EWCA Civ 1271. Appeal allowed with costs. The Special Adjudicator's determination and the Secretary of State's refusal of exceptional leave were set aside and remitted for fresh consideration.
2. Administrative Court (Cresswell J): refused judicial review of the Special Adjudicator's determination and the Secretary of State's subsequent decision.
3. Special Adjudicator: upheld the refusal of refugee status, but recommended leave outside the Rules because of the risk of persecution and strong compassionate circumstances.
4. Secretary of State: refused asylum, refused to treat the further representations as a fresh claim, and refused exceptional leave to remain.