ROSZKOWSKI v. A SPECIAL ADJUDICATOR

In an asylum appeal subject to a certificate restricting further appeal rights, the question whether treatment amounted to torture turned on the severity of the physical or mental pain or suffering shown. The statutory concept did not require proof that public officials inflicted, acquiesced in, or failed to prevent the treatment where that was not the decision-maker’s reasoning or an issue argued before it. The assessment of severity was for the Special Adjudicator. Her conclusion was legally open to her and was not perverse. A decision on the sufficiency of state protection must give reasons adequate to the circumstances, but the required detail varies with the case.

The appellant, a Polish Roma, claimed asylum after repeated attacks and threats against his family in Poland. The Secretary of State refused asylum and certified the claim under paragraph 5 of Schedule 2 to the Asylum and Immigration Appeals Act 1993, as amended by the Asylum and Immigration Act 1996. The Special Adjudicator accepted the appellant’s evidence but concluded that it established neither persecution nor torture, and upheld the certificate.

Keene J dismissed the appellant’s applications for judicial review but granted permission to appeal because of the issues concerning the meaning of torture in the certification provisions. The central questions were whether the Special Adjudicator had misunderstood the statutory concept of torture and whether her conclusions on torture and sufficiency of protection were legally defective.

1. Appeal dismissed. The Court held that the Special Adjudicator had not found that torture required intentional infliction of severe pain by a public official, or that torture by private actors required an insufficiency of state protection. The references to Article 1 of the UN Convention Against Torture and section 134(1) of the Criminal Justice Act 1988 were made to recognise that psychological trauma could constitute torture, subject to the requirement that the suffering be severe.
2. Construing the determination in context, the sole reason for rejecting the torture limb of the claim was that the appellant’s account did not establish severe physical or mental pain or suffering. The decision therefore did not rest on an erroneous public-official or state-protection requirement.
3. The evaluation of the severity of the appellant’s experiences was entrusted to the Special Adjudicator, not the court. Her conclusion that the evidence did not establish torture was legally open to her and could not be characterised as perverse.
4. The Special Adjudicator’s conclusion that there was sufficient protection in Poland was also legally open to her. Her reasoning was adequate in the circumstances. The Court applied the principles concerning adequacy of reasons stated in R v Criminal Injuries Compensation Board, ex parte Cook [1996] 1 W.L.R.1037, and noted that the legal approach to sufficiency of protection accorded with Horvath v Secretary of State for the Home Department [2000] 3 W.L.R.379.
5. The Court declined to determine the wider, obiter question whether paragraph 5(5) required torture by state organs or agents, or torture by non-state actors against which the state was unable or unwilling to provide sufficient protection. New evidence concerning the appellant’s wife did not establish that the appellant himself had suffered torture and provided no basis for allowing the appeal.

• Court of Appeal (Civil Division): The appeal from the decision of Keene J was dismissed. The Court upheld the Special Adjudicator’s refusal of the asylum claim and certification decision.
• High Court, before Keene J: Applications for judicial review of the Special Adjudicator’s decisions were dismissed. Permission to appeal was granted because the case raised serious issues concerning the meaning of torture in the certification legislation.