Secretary Of State For the Home Department v Glowacki

In an asylum claim based on persecution by non-State actors, the question is whether the applicant has shown a reasonable likelihood that the authorities are unable or unwilling to provide protection. The assessment requires attention both to the existence of a discernible system of justice and to its practical operation. Protection need not be fully effective. Inefficiency or incompetence does not establish unwillingness unless it is extreme and widespread. A specialist appellate tribunal may draw its own conclusions on secondary facts and the general position from primary findings, although primary factual findings carry considerable weight.

The applicant, a Roma from Poland, claimed asylum on the basis of racist violence and inadequate protection by the Polish authorities. A special adjudicator accepted his account and allowed his appeal. The Immigration Appeal Tribunal reversed that decision, finding that Poland had a discernible system of justice and that the evidence did not establish a general failure of protection for Roma.

The applicant renewed an application for permission to appeal after permission had been refused on paper. The central issue was whether the Tribunal had applied the correct test for State protection and was entitled to reach its conclusion on the evidence.

1. Application dismissed. The Immigration Appeal Tribunal correctly applied the principles governing State protection in Horvath. Its conclusion could not be criticised.
2. The relevant question was whether the applicant had discharged the burden of showing a reasonable likelihood that he was unable to avail himself of the protection of the authorities in Poland. The assessment had to address his individual circumstances against the general country evidence.
3. The proper approach was not formalistic. There must be a criminal law making violent attacks punishable, and a reasonable willingness by law-enforcement agencies to protect, prosecute and punish offenders. A discernible system of justice was required, but protection could be sufficient even though it was not fully effective, since absolute safety could never be guaranteed. Inefficiency or incompetence was not equivalent to unwillingness unless extreme and widespread.
4. The Tribunal was entitled to draw its own conclusions on secondary facts and the general position from the primary facts found by the special adjudicator. It was not required to reverse those primary findings in order to reach a different conclusion. Although the adjudicator’s assessment carried considerable weight, the Tribunal was not bound by her conclusions.
5. Neither the special adjudicator nor the Tribunal was required to reason in pedantic detail. It was sufficient that the grounds of decision were adequately explained, even where the Tribunal differed from the adjudicator.
6. On the evidence, Poland had a discernible system of justice, attempts were made to prosecute racist attacks, and Roma were not generally excluded from legal protection. The individual incidents relied upon, occurring in one town, did not establish the required reasonable likelihood of inability or unwillingness to protect.

Lord Justice Peter Gibson agreed. The application was dismissed, with detailed assessment of the applicant’s costs.

1. Special adjudicator: Allowed the applicant’s asylum appeal, finding a pattern of persecution and insufficient protection by the Polish authorities.
2. Immigration Appeal Tribunal: Reversed the special adjudicator’s determination, applying the guidance in Horvath.
3. Court of Appeal (Civil Division): Dismissed the renewed application for permission to appeal and upheld the Tribunal’s approach. [2001] EWCA Civ 917