Banomova v Secretary Of State for the Home Department

Persecution by non-state agents engages the Refugee Convention only where the home state’s protection falls below the Convention standard. Protection is assessed systemically. The state must maintain appropriate criminal laws, extend their protection to the relevant class, and show a reasonable willingness and ability to detect, prosecute and punish offenders.

The standard is practical and does not guarantee immunity from every attack. Police acceptance of an adult complainant’s withdrawal, even where threats prompted it, does not by itself establish systemic failure when the police initially investigated and remained willing to reopen the complaint.

The appellant, a Slovak national of mixed Roma and non-Roma parentage, claimed asylum after prolonged racial discrimination and a violent invasion of her family home. The Slovak police investigated the attack, but her father withdrew his complaint following further threats. The police permitted the withdrawal while stating that the complaint could be reinstated.

An immigration officer refused leave to enter. A special adjudicator dismissed the ensuing asylum appeal under section 8(1) of the Asylum and Immigration Appeals Act 1993, finding sufficient protection in Slovakia. The Immigration Appeal Tribunal dismissed a further appeal.

The Court of Appeal considered whether the police response demonstrated inadequate state protection under Article 1A(2) of the 1951 Geneva Convention Relating to the Status of Refugees, whether the appellant was unwilling through fear to seek that protection, and whether her mixed Roma identity placed her at greater risk.

1. The appeal was dismissed unanimously. Clarke LJ delivered the leading judgment. Thorpe LJ agreed with his reasoning, and Butterfield J agreed.

2. In a claim concerning persecution by non-state agents, the adequacy of home-state protection must be assessed systemically. Following Horvath v Secretary of State for the Home Department [2000] 3 WLR 379, the state must maintain criminal laws making persecutory violence punishable by appropriate penalties. The relevant class of victims must receive the law’s protection, and the police and courts must have a reasonable willingness and ability to detect, prosecute and punish offenders.

   The Convention requires a practical level of protection rather than a guarantee against every isolated or random attack. Inefficiency, incompetence, limited resources, or the failings of some officials do not alone establish that the state is unable or unwilling to protect its nationals. Cogent evidence is required to establish systemic unwillingness where the state has the capacity to protect.

3. The Immigration Appeal Tribunal was entitled to find sufficient protection in Slovakia. The police attended the family home, recorded the complaint, inspected and photographed the scene, and arranged medical treatment. They accepted the father’s later withdrawal but made clear that the complaint could be reopened. The evidence did not show that Slovak police would invariably abandon complaints withdrawn after threats, regardless of the available evidence.

   Allowing a competent adult to withdraw a complaint in those circumstances did not, without more, amount to a systemic denial of protection. The facts were not materially distinguishable from Horvath, which governed the appeal.

4. Once sufficient state protection was established, the appellant did not have a well-founded fear of persecution within the Convention meaning. It was therefore unnecessary to resolve the differing views in Horvath about the words “owing to such fear, is unwilling”. Her possible greater vulnerability as a person of mixed Roma parentage could not alter the result. The relevant question was whether the state would afford adequate protection, not the comparative degree of danger presented by private persecutors.

1. Court of Appeal (Civil Division): The court dismissed the appeal and affirmed the Immigration Appeal Tribunal’s determination. Publicly funded costs were assessed for the appellant.
2. Immigration Appeal Tribunal: On 31 July 2000 the tribunal dismissed the appellant’s appeal, holding that Slovakia provided protection meeting the minimum international standard.
3. Special adjudicator: On 6 June 2000 the adjudicator dismissed the appeal against the immigration officer’s decision, finding sufficient protection available in Slovakia.
4. Immigration officer: On 15 March 1999 the officer refused the appellant leave to enter after her asylum claim had been refused.