Mishto v Secretary of State For Home Department

In an asylum claim, sufficiency of State protection must be assessed in the circumstances of the particular applicant. General country conditions cannot be considered in isolation. The Horvath criteria require a system of protection and machinery for detecting, prosecuting and punishing persecutory acts, together with an ability and willingness to operate it. An absolute guarantee is unnecessary, and inefficiency or incompetence does not by itself establish unwillingness. An adjudicator may decide sufficiency of protection as a preliminary issue on the written case taken at face value. On judicial review, a challenge to the factual assessment is subject to the high Wednesbury threshold, and the reviewing court must not substitute its own view where relevant material has been considered.

The appellant, an Albanian national, claimed asylum and human-rights protection based on domestic abuse by her former partner and feared violence from him or his family on return. The Adjudicator considered sufficiency of State protection as a preliminary issue, without hearing credibility evidence, and dismissed the appeals against removal directions. A certificate under paragraph 94A of Schedule 4 to the Immigration and Asylum Act 1999 was later quashed by consent.

The Immigration Appeal Tribunal refused leave to appeal. Harrison J dismissed the appellant’s judicial review claim. The appeal concerned the fairness of the preliminary procedure, the proper characterisation of the feared risk, and whether the finding of sufficient protection in Albania was legally sustainable.

Lord Justice Laws, with whom Lord Justice Ward agreed, dismissed the appeal.

1. The issue for judicial review was whether the Adjudicator’s determination disclosed an arguable flaw requiring the Immigration Appeal Tribunal to grant leave. Criticism of supplementary reasoning by the High Court judge could not succeed if the Adjudicator’s determination itself was sound.
2. Sufficiency of State protection had to be assessed in accordance with Horvath [2000] INLR 2039. The relevant question concerned the existence of a system of domestic protection and machinery for detecting, prosecuting and punishing persecutory acts, together with the ability and readiness to operate that machinery. An absolute guarantee was unnecessary. Inefficiency or incompetence was not the same as unwillingness.
3. The protection issue could not be considered against a generalised background of domestic violence alone. It had to be related to the circumstances and fears advanced in the individual case. On a fair reading, the Adjudicator took the appellant’s interview and written statement at face value and assessed whether those facts would disclose a well-founded fear. The later observations about the former partner were consistent with that written case and were unnecessary to the result.
4. The Adjudicator was entitled to determine sufficiency of protection before hearing credibility evidence where the issue, if decided against the appellant, would dispose of the appeal. The procedure was not unfair in the circumstances.
5. The challenge to the finding of sufficient protection was a Wednesbury challenge, subject to anxious scrutiny. The evidence pointed in different directions, but the Adjudicator had considered the relevant material, including evidence concerning prosecution of violent offenders. The appellant had not shown that the conclusion was irrational or that the burden of establishing insufficient protection had been discharged. The Court of Appeal could not substitute its own factual assessment.
6. Adjudicators should nevertheless be wary of deciding general in-country conditions without examining the particular nature and extent of the appellant’s fears, since general conditions may have a different significance when applied to individual facts. This was guidance rather than a basis for allowing the appeal. The appeal was dismissed. The appellant’s costs were to be subject to detailed assessment and adjourned to the Taxing Master under section 11.

1. Court of Appeal (Civil Division) — [2003] EWCA Civ 1978: dismissed the appeal and made the stated costs order.
2. High Court, Administrative Court — Harrison J, 19 May 2003: dismissed the claim for judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal.
3. Immigration Appeal Tribunal — 9 October 2002: refused leave to appeal against the Adjudicator’s determination.
4. Adjudicator — determination promulgated 2 November 2001: dismissed the asylum and human-rights appeals against the removal directions.