Secretary of State for the Home Department (Immigration Appeal Tribunal) v Krepel

For Article 3 claims involving ill-treatment by private persons, the relevant question is whether the state has taken reasonable measures to provide sufficient protection. The state is not required to eliminate every risk or guarantee safety. The same protection standard applies in substance under Article 3 and the Refugee Convention. A tribunal may reassess the inferences drawn from agreed primary facts, including whether an isolated delay by police demonstrates inadequate state protection. The claimant bears the burden of showing that the authorities are unable or unwilling to provide sufficient protection.

The applicant, a Czech citizen living with a Romany woman, claimed asylum and protection under Article 3 of the European Convention on Human Rights. The adjudicator accepted evidence of racist attacks and harassment, rejected the asylum claim by applying Horvath, but allowed the Article 3 claim.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal. It held that there was no perceptible difference between the protection test under the Refugee Convention and Article 3, and that the adjudicator had placed excessive weight on the fact that an ambulance arrived before the police after an attack. The issue was whether that approach disclosed an error of law or an arguable distinction between the two protection standards.

Application refused. The Court of Appeal held that the Immigration Appeal Tribunal had applied the correct legal test and was entitled to allow the Secretary of State’s appeal.

1. Applicable protection standard. Article 3 imposes an obligation on the state. Where ill-treatment is inflicted by third parties, the question is whether the state has taken sufficient and reasonable measures to protect the individual. The standard is materially the same as the sufficiency-of-protection test under the Refugee Convention. It does not require an absolute guarantee of safety or removal of every real risk.
2. Burden and substance of the inquiry. The claimant bears the burden of showing that the authorities are incapable of, or unwilling to provide, sufficient protection. The relevant question is whether there is a domestic system and machinery which the authorities have the ability and readiness to operate. The assessment is fact-sensitive.
3. Assessment of evidence. The Tribunal was entitled to reject the adjudicator’s inference that the police’s arrival after the ambulance demonstrated a general lack of protection. The order of arrival, without evidence about distances, demands on the services or the practical significance of earlier police attendance, was of no material relevance. The police had attended, taken statements and apparently begun an investigation.
4. Consistency of the adjudicator’s findings. Having found sufficient protection for asylum purposes under Horvath, the adjudicator could not reach a different Article 3 conclusion unless she had applied a different test. The Tribunal was entitled to conclude that the findings were inconsistent.

Lord Justice Schiemann agreed that the Tribunal had manifestly applied the correct test, relying on Kacaj. Lord Justice Longmore agreed. The application for permission to appeal was refused, with public funding subject to detailed assessment.

• Court of Appeal (Civil Division) [2002] EWCA Civ 1265: refused the renewed application for permission to appeal.
• Immigration Appeal Tribunal: allowed the Secretary of State’s appeal from the adjudicator and set aside the adjudicator’s decision allowing the Article 3 claim.
• Adjudicator: rejected the asylum claim but allowed the Article 3 claim.