Katrinak v Secretary Of State For Home Department

In an asylum claim based on persecution by private individuals, the decision-maker must assess the future risk of sufficiently severe ill-treatment and the adequacy of state protection. Past attacks are relevant evidence, but the claimant need not show a likelihood of precisely the same treatment recurring. The assessment must consider the claimant’s circumstances as a whole. Persecution may also arise from serious abuse inflicted on an immediate family member where that abuse is reasonably likely to affect the claimant in a way that amounts to persecution. A tribunal must give a legally adequate and clearly articulated explanation of its reasoning, particularly where it prevents the claimant’s representative from completing submissions.

The appellant, a Roma citizen of the Czech Republic, appealed against the Immigration Appeal Tribunal’s dismissal of his asylum appeal. He and his pregnant wife had suffered racial abuse and physical attacks by skinheads. The special adjudicator accepted his account but concluded that the past treatment was neither persistent nor sufficiently serious and that inadequate state protection had not been established.

The Tribunal focused on the absence of a reasonable likelihood that the appellant would suffer the same treatment again. It stopped his representative before the submissions were complete. The central issues were whether the Tribunal had properly assessed the future risk of persecution, the significance of the attacks on the appellant’s wife, and the sufficiency of state protection.

1. The appeal was allowed. The Immigration Appeal Tribunal’s decision was quashed and the matter was remitted to a differently constituted tribunal. Costs were awarded to the applicant, subject to detailed assessment.
2. The refugee definition is directed principally to future risk. Past ill-treatment is an evidential factor, but the claimant need not establish a likelihood of being subjected to precisely the same treatment as before. The relevant question is whether there is a reasonable degree of likelihood of future ill-treatment sufficiently severe to amount to persecution.
3. Where the feared persecution is inflicted by private persons, persecution depends on whether the home state is unable or unwilling to establish and operate an effective system of protection. This principle was stated in Horvath v Secretary of State for Home Department [2000] 3 WLR 379.
4. The Tribunal was entitled to consider whether one previous attack, viewed with the general evidence concerning Roma in the Czech Republic, established a future risk. However, its concentration on the appellant’s 29 years in the country and on whether he would be treated in the same way again did not demonstrate a legally adequate process of reasoning.
5. The Tribunal also had to consider the appellant’s wife’s experience. A person may be persecuted by what is done or threatened to an immediate family member. The decision-maker must assess what is reasonably likely to happen to the wife and whether it is reasonably likely to affect the husband so as to amount to persecution of him.
6. The Tribunal’s reasoning failed clearly to address these matters and did not adequately explain the issue of state protection. Its intervention in the appellant’s submissions made the need for clear reasoning particularly important.

• Court of Appeal (Civil Division) — The appeal from the Immigration Appeal Tribunal was allowed. The Tribunal’s decision was quashed and the matter remitted to a differently constituted tribunal.
• Immigration Appeal Tribunal — Appeal against the special adjudicator’s decision dismissed.
• Special adjudicator — Appeal from the Secretary of State’s decision rejected; the appellant’s account was accepted, but the treatment was held not to constitute persecution and insufficient state protection was not established.