Harakel v Secretary of State for the Home Department

In an asylum claim based on persecution by non-state agents, the question is whether the home state is unable or unwilling to provide effective protection. The standard is practical. It does not require elimination of every risk or a guarantee against isolated attacks. A tribunal must assess the protective system in operation, including whether reasonable domestic avenues were available and whether the claimant’s failure to pursue them was reasonable. The assessment is individual, fact-dependent and fact-specific. It must place recent incidents in the claimant’s historical and personal context and engage with objective and expert evidence. A tribunal errs in law if it assumes police action without evidential basis or treats the claimant’s conduct as unreasonable without addressing the significance of reported police inaction.

The appellant, a Romany citizen of the Czech Republic, claimed asylum after repeated discrimination, threats and attacks by skinheads against him and his family. A special adjudicator accepted his evidence, found persecution and inadequate state protection, and allowed his appeal. The Immigration Appeal Tribunal allowed the Secretary of State’s appeal, holding that a domestic protection system existed and that reasonable avenues of recourse had not been exhausted. The issue before the Court of Appeal was whether the Tribunal had erred in law by reaching a conclusion unavailable on the evidence.

The appeal was allowed and the decision of the special adjudicator was restored.

1. Applicable protection standard. The court applied the approach in Horvath v Secretary of State for the Home Department [2000] 3 WLR 379. In a non-state-agent case, persecution may arise where the home state is unable or unwilling to provide protection. The standard is practical and does not require a guarantee against every attack. A formal legal, administrative and enforcement framework is insufficient if it is ineffective in practice.
2. Individual assessment. The question whether protection is effective, and whether reasonable avenues of domestic recourse have been exhausted, requires a practical, individual, fact-dependent and fact-specific assessment. Discrimination and persecution are distinct. It is insufficient merely to establish Roma ethnicity or the existence of an unsuccessful protective system. Individual police incompetence or lack of evidence does not by itself establish state inability, but unwillingness to act, coupled with no effective means of compelling performance of the police duty, may do so. The court adopted the analysis in Secretary of State for the Home Department v Havlicek, dated 18 April 2000.
3. Errors in the Tribunal’s reasoning. The Immigration Appeal Tribunal treated the incidents in late 1998 too narrowly. It failed to place them in the appellant’s personal history, the wider historical position of Romanies in the Czech Republic, and the objective and expert evidence. It also treated the appellant’s failure to provide further information or pursue complaints as significant without properly considering that he had reported matters and appeared to have received no effective police response.
4. Appellate intervention. An appeal from the Immigration Appeal Tribunal could succeed only for an error of law. That threshold was met because the Tribunal’s reasons were inadequate and its conclusion was not open to a tribunal properly directing itself on the evidence. Lord Justice Judge agreed, adding that each asylum claim must be assessed individually. Mr Justice Lloyd agreed with Lord Justice Latham.

1. Court of Appeal (Civil Division) allowed the appeal and restored the special adjudicator’s decision.
2. Immigration Appeal Tribunal allowed the Secretary of State’s appeal against the special adjudicator’s decision.
3. Special adjudicator accepted the appellant’s evidence, found a well-founded fear of persecution and inadequate state protection, and allowed the appeal.