Bogdan v Secretary of State for the Home Department

In a claim based on persecution by non-State actors, the assessment must consider the alleged conduct and the protection available from the State as a whole. The question is whether, viewed cumulatively, those matters justify the need for surrogate protection. The availability or adequacy of State protection does not form a separate enquiry into whether the claimant has a well-founded fear of persecution. The claimant must provide sufficient evidence that the State is unwilling or unable to provide protection.

The appellant, a Roma citizen of the Czech Republic, claimed asylum on the basis of repeated attacks and intimidation by skinheads. The special adjudicator allowed his appeal, accepting that he had suffered persecution and had a well-founded fear because the Czech authorities had failed to protect him.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal. It considered that the adjudicator had applied an inappropriate test following Horvath v Secretary of State for the Home Department [2000] 3 All ER, and held that the evidence did not establish persecution or a failure of State protection. The appellant renewed an application for permission to appeal.

1. Application refused. The Immigration Appeal Tribunal had correctly directed itself in law and reached a conclusion open to it on the evidence.
2. The appropriate approach, following the principles discussed in Horvath v Secretary of State for the Home Department [2000] 3 All ER, was to assess the alleged behaviour and the protection provided by the State together. The issue was whether, considered as a whole, those matters justified the conclusion that surrogate protection in the United Kingdom was required.
3. The adequacy of State protection was not a separate enquiry into whether the asylum seeker had a well-founded fear of persecution. Treating it as such could produce an incorrect result.
4. The tribunal was entitled to doubt whether the incidents relied upon, if perpetrated by State agents, would properly amount to persecution. It was also entitled to conclude that the evidence did not establish that the Czech Republic was unwilling or unable to provide protection. The existence of an appropriate criminal law and court system, and the circumstances of the incidents, did not show that the police must have been unwilling or unable to assist.
5. The tribunal was therefore entitled to allow the Secretary of State’s appeal. There was no realistic prospect of successfully challenging that conclusion.

• Court of Appeal (Civil Division): refused the renewed application for permission to appeal from the Immigration Appeal Tribunal’s decision of 22 June 2001.
• Immigration Appeal Tribunal: allowed the Secretary of State’s appeal from the special adjudicator.
• Special adjudicator: allowed the appellant’s appeal against refusal of asylum.