Svazas v Secretary of State for the Home Department

Where persecution is inflicted systematically or endemically by police or other state officials, a tribunal must give particular weight to the state's responsibility for its agents. The state must possess protective machinery and operate it to a practical standard which responds promptly and effectively to official misconduct. A guarantee against every abuse is unnecessary, but official involvement requires stronger evidence of political will, enforcement and effective control than persecution solely by private persons.

The fear and protection tests remain distinct in such cases. Discriminatory police brutality motivated by political opinion may satisfy the Convention-reason requirement. A merely causal “but for” connection between political opinion and detention does not suffice.

The appellant, an active member of the banned Lithuanian Communist Party, had been detained repeatedly for substantial periods and beaten by police. The Immigration Appeal Tribunal accepted that he was likely to be detained and exposed to police brutality again, but dismissed his asylum appeal. It found that brutality was neither condoned by the Lithuanian authorities nor materially worse for Communist prisoners than for other detainees.

The appellant appealed from the Immigration Appeal Tribunal. The Court of Appeal had to decide whether the tribunal had properly addressed whether the anticipated ill-treatment would be for political opinion and whether Lithuania afforded sufficient protection where the feared persecutors were state officials.

1. Appeal allowed unanimously and remitted. The Immigration Appeal Tribunal's determination did not demonstrate that it had applied the correct approach to either the Convention-reason issue or the protection issue. The claim was remitted to a differently constituted tribunal, with no previously available issue closed to either party.

2. Per Sedley LJ, the tribunal's findings that brutality arose from hostility to the former Soviet regime and that officers might act vindictively because of the appellant's Communist allegiance were incompatible with its unqualified conclusion that he faced no worse treatment than other prisoners. In the context of repeated detention, those findings were capable of establishing persecution for political opinion. Simon Brown LJ and Sir Murray Stuart-Smith agreed that the tribunal had not adequately resolved that issue. A simple “but for” relationship between political opinion and exposure to prison brutality would, however, be insufficient.

3. Where misconduct by state officials is systematic or endemic, the decision-maker must begin with the state's responsibility for its agents and examine what it is doing to control them. The practical standard derived from Horvath requires protective law and machinery, together with an ability and readiness to operate them. It does not require guaranteed prevention or the immediate successful prosecution of every offending officer.

4. All three members of the court considered that direct involvement by police required greater scrutiny than persecution exclusively by private actors. The more senior and closely involved the officials, the clearer the required demonstration of political will, adequate procedures and enforcement. The duration, repetition and gravity of the ill-treatment may also affect what evidence of adequate protection is required.

5. The distinction between the fear test and protection test remained material. A person with a well-founded fear may also be unwilling, because of that fear, to seek protection from the home state. The tribunal therefore had to consider both the effectiveness of Lithuania's response to discriminatory police brutality and whether the appellant could justifiably be unwilling to rely upon that response.

1. Court of Appeal: The appeal was allowed unanimously. The asylum claim was remitted to a differently constituted Immigration Appeal Tribunal for reconsideration in accordance with the court's judgments.
2. Immigration Appeal Tribunal: The tribunal upheld the adjudicator's dismissal of the asylum application.
3. Adjudicator: The appellant's asylum application was dismissed.