Bagdanavicius & Anor, R (On the Application of) v Secretary of State for the Home Department

In removal cases, the assessment of a real risk of treatment contrary to Article 3 and of a well-founded fear of Convention persecution is broadly the same. Where the feared harm is from non-state actors, risk must be assessed with the protection reasonably available from the receiving state.

Sufficient protection requires a willing and able legal system providing a reasonable systemic level of deterrence and prevention. It does not guarantee safety or eradicate every real risk. A claim may nevertheless succeed where the authorities know, or ought to know, of circumstances requiring additional protection which they are unlikely to provide.

A claim is clearly unfounded only if it could not succeed on any legitimate view.

The appellants, Lithuanian nationals, sought asylum and relied on Articles 3 and 8 of the European Convention on Human Rights. They alleged harassment and violence connected with Mr Bagdanavicius’s Roma origin and, principally, threats by Mrs Bagdanaviciene’s brother and his associates. They contended that the Lithuanian authorities could not provide effective protection.

The Secretary of State refused the claims and certified them as clearly unfounded under Nationality, Immigration and Asylum Act 2002, section 115. Maurice Kay J in the Administrative Court dismissed their judicial-review claims on 16 April 2003.

The appeal concerned the relationship between a well-founded fear of persecution, a real risk of Article 3 ill-treatment, and the sufficiency of state protection. It also challenged the certification, the treatment of post-decision evidence, and the adequacy of the Secretary of State’s reasons.

1. Appeals dismissed unanimously. Auld LJ gave the reasons, with which Arden LJ and the Lord Chief Justice agreed. The Secretary of State and the judge had correctly treated the claims as clearly unfounded.

2. For asylum, an applicant must show a well-founded fear of persecution for a Refugee Convention reason and insufficient state protection. Following Horvath v SSHD [2001] AC 489, protection is sufficient if the receiving state is willing and able, through its legal system, to provide a reasonable level of protection. The inquiry is normally systemic and concerns deterrence and prevention as well as punishment. It does not require a guarantee of safety.

3. The same practical approach applies to Article 3 removal claims based on harm by non-state actors. The reality and intensity of the risk cannot be assessed without considering the protection available against it. The threshold depends on the circumstances, including the gravity and nature of the threatened harm and whether it emanates from state agents or private actors. State-agent cases will commonly engage Article 3 more readily, but the cases lie on a spectrum.

4. Systemically sufficient protection does not end the inquiry where the authorities know or ought to know of a claimant’s particular circumstances and are unlikely to provide the additional protection reasonably required. The appellants’ material, even taken at its highest and including the further evidence, did not disclose an arguable risk for which Lithuania was unwilling or unable to provide sufficient protection. Internal relocation was also unarguable on the facts advanced.

5. A section 115 certificate is proper only where the claim cannot succeed on any legitimate view, or is bound to fail before an adjudicator. The threshold is high, but the appellants’ claims met it. The court considered the post-decision and fresh evidence under anxious scrutiny and held that it could not affect the result. The Secretary of State’s four decision letters, read together, adequately explained why the claims were bound to fail; no further separate reasons for certification were required.

• Court of Appeal (Civil Division) — dismissed the appeals and upheld the certifications as clearly unfounded: [2003] EWCA Civ 1605.

• Administrative Court — Maurice Kay J dismissed the appellants’ judicial-review claims on 16 April 2003, upholding the Secretary of State’s certificates under section 115 of the Nationality, Immigration and Asylum Act 2002.