Ivanauskiene, R (on the application of) v Special Adjudicator

Permission to appeal may properly be granted where an adjudicator’s findings arguably engage the principle that a state may bear responsibility under the Refugee Convention where it is unable or unwilling to protect a relevant social group from persecution. The court need not determine the merits at the permission stage. It is sufficient that the issue, considered in light of applicable appellate guidance, warrants further consideration.

The applicant sought permission to appeal against an order of Cresswell J dated 13 December 2000 in an immigration matter. The proposed appeal concerned, among other matters, whether the Secretary of State had adequately approached her application for exceptional leave to remain and whether the state of Lithuania had failed to protect women from attacks by their husbands.

The court had initially refused permission on the principal persecution ground, but reconsidered the issue after submissions relying on the guidance in Regina v Immigration Appeal Tribunal ex parte Shah [1999] 2 AC 629. The central question was whether the adjudicator’s findings made the protection-theory issue sufficiently arguable for further consideration.

1. Permission granted. Lord Justice Buxton granted permission to appeal on all the matters advanced by the applicant. The court expressly indicated that the outcome of the substantive appeal was far from clear.
2. The relevant issue was whether the state’s responsibility under the Refugee Convention could be engaged where the state was unable or unwilling adequately to protect women against attacks by their husbands. That issue was identified as arising within the familiar protection theory of state responsibility.
3. The adjudicator had made material findings that the Lithuanian authorities would not be able to provide the applicant with adequate protection and had not done so in the past. Read in the light of the guidance provided by the House of Lords in Regina v Immigration Appeal Tribunal ex parte Shah [1999] 2 AC 629, those findings made it arguable that women in Lithuania were not protected against violence directed at them because of their status as women or married women.
4. The court did not decide whether there was institutionalised discrimination against women in Lithuania, whether the Refugee Convention was ultimately engaged, or whether the appeal would succeed. Those matters were left for further consideration by the court.
5. The application was allowed, with a legal aid assessment of the applicant’s costs.

• Court of Appeal (Civil Division): On the renewed application, permission to appeal against the order of Cresswell J dated 13 December 2000 was granted.
• Administrative Court: Cresswell J had made the order under challenge in the immigration matter. The judgment does not provide a citation for that order.