Wierzbicki v Secretary of State for the Home Department

Where feared persecution is inflicted by non-state actors, refugee status depends on whether the home state provides a practical and sufficient system of protection. The standard does not require a guarantee against every isolated or random attack. It requires an effective system of criminal law and enforcement, operated with reasonable willingness and readiness to detect, prosecute and punish offenders. The assessment is country- and time-specific and must consider the evidence as a whole. An Immigration Appeal Tribunal’s conclusion on the sufficiency of protection is principally factual. The Court of Appeal may interfere only for an error of law, procedural error or a conclusion that is manifestly wrong.

The appellant, a Roma from Poland, claimed asylum after experiencing harassment, violence, property attacks and alleged police mistreatment. A Special Adjudicator accepted his account and allowed his appeal, finding persecution and an inadequate level of state protection.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal. It held that the Polish authorities did not knowingly tolerate racial discrimination and that sufficient protection was available at the date of its decision. The appellant appealed to the Court of Appeal, arguing that the Tribunal had applied the wrong test and had wrongly treated the police and other individuals as non-state actors. The central issue was whether the Tribunal had erred in law or reached a conclusion which the Court could properly set aside.

1. Appeal dismissed. The Immigration Appeal Tribunal had applied the correct legal approach and was entitled to conclude that sufficient protection was available in Poland. The decision was legally defensible and was not manifestly wrong.
2. Where persecution is feared from non-state actors, the relevant question is whether the home state is unable or unwilling to establish and operate a system of protection against persecution for a Convention reason. The standard is practical rather than absolute. It does not require the elimination of every risk or a guarantee against isolated attacks.
3. The required system must include domestic criminal law and machinery for detecting, prosecuting and punishing conduct contrary to the Convention’s purposes. There must also be a reasonable willingness and readiness by the police and courts to operate that machinery. The precise level of protection depends on the circumstances of each case.
4. The test in Debrah v Secretary of State for the Home Department [1998] INLR 383 was not materially different from the approach approved in Horvath v Secretary of State for the Home Department [2000] 3 WLR 379. The Tribunal was therefore entitled to use the Debrah formulation.
5. The Tribunal had to assess the position at the date of its own decision. It was entitled to consider the appellant’s personal history, the general situation of Roma in Poland, the legal and law-enforcement systems, and the effectiveness of those systems. On the evidence, it was entitled to find that the risk did not require surrogate international protection.
6. The Court of Appeal’s jurisdiction was confined to points of law. Where the challenge concerns the factual evaluation of sufficiency of protection by an expert tribunal, intervention is justified only where the conclusion is unsupported by the evidence or plainly perverse. The appeal was dismissed with costs, subject to legal aid assessment, and permission to appeal to the House of Lords was refused.

• Immigration Appeal Tribunal: allowed the Secretary of State’s appeal against the Special Adjudicator’s decision and held that sufficient protection was available in Poland.
• Court of Appeal (Civil Division): dismissed the appellant’s appeal. The Tribunal had applied the correct test and had not reached a manifestly wrong conclusion.