Kandrac, R (on the application of) v Secretary Of State For Home Department

State protection is assessed by reference to the protection generally available from the state, not by whether every individual police officer acts properly. Isolated police corruption, weakness, sympathy or failure to investigate does not necessarily establish state unwillingness or inability to protect. Where effective protection is generally available, a claim by a Czech Roma will ordinarily be manifestly unfounded unless there is a particular reason why the applicant cannot obtain that protection. Each claim remains fact-sensitive, but consistency with the established treatment of comparable claims is relevant.

The applicant, a Roma of Czech nationality, sought permission to appeal against Ouseley J’s refusal of permission to apply for judicial review. The proposed challenge concerned a special adjudicator’s dismissal of his asylum appeal and the certification of his claim as manifestly unfounded.

The applicant argued that police unwillingness to detect and prosecute racially motivated offenders meant that the Czech Republic could not provide protection satisfying the Horvath test. He also argued that certification would make every asylum claim manifestly unfounded unless proved sustainable. The central issues were whether sufficient state protection was available and whether certification was justified.

1. Application refused. The proposed grounds of appeal had no substance.
2. The relevant question under the Horvath test was whether the Czech state generally afforded sufficient protection. The fact that some police officers were corrupt, sympathetic to offenders, weak, abusively dismissive or unhelpful did not establish that the state was unwilling or unable to protect. The Czech Republic was a democracy, and other branches of the executive could hold police officers accountable and investigate failures.
3. Individual Roma might sometimes fail to obtain police assistance. That individual failure did not, without more, amount to persecution or demonstrate a general failure of state protection. The evidence showed that the Czech authorities were concerned to punish police officers who failed to investigate racially motivated crime.
4. Once sufficient state protection was recognised, the asylum claim could properly be certified as manifestly unfounded. This did not mean that every such claim must be certified. Certification would be inappropriate where there was a particular and unusual reason why the applicant, despite the Czech state’s general ability and willingness to protect, could not avail himself of that protection.
5. Each case had to be considered on its own facts, while consistency of approach remained relevant. The applicant’s case did not materially differ from the general run of Czech Roma claims, including claims involving random assaults and police failures to investigate.

The order below was upheld and the application was refused.

1. Court of Appeal (Civil Division) [2001] EWCA Civ 1575: permission to appeal refused.
2. High Court, Queen’s Bench Division, Administrative Court: Ouseley J refused permission to apply for judicial review on 2 February 2001.
3. Special adjudicator: dismissed the applicant’s asylum appeal and upheld certification of the claim as manifestly unfounded on 16 February 2000.