Hadiova v Secretary of State for the Home Department

The Court of Appeal dismissed the appellant's challenge to the Immigration Appeal Tribunal's dismissal of her asylum and human rights claims. The court held that Ullah v Secretary of State for the Home Department [2002] EWCA Civ 1856 is binding: where an asylum-seeker alleges a breach of Convention rights arising from treatment in the receiving state, Articles other than Article 3 will not normally be engaged. Applying that principle, the court found no breach of Article 8 (respect for private and family life) because the facts did not establish a failure by the Czech authorities to provide effective protection, and no interference of the requisite character had been shown. The court also held that the incidents relied on did not reach the threshold of Article 3 (torture or inhuman or degrading treatment) and that Article 14 added nothing to the Article 8 claim. Finally, the tribunal's conclusion that there was no persecution for the purposes of the Refugee Convention was not open to challenge given the evidence of available mechanisms of protection and the lack of identification of the attackers.

Background and procedural posture:

• The appellant, a Czech national of Roma ethnicity who was in a lesbian relationship, arrived in the United Kingdom on 22 August 2001 and claimed asylum. The Secretary of State refused asylum and concluded removal would not breach obligations under the Human Rights Act 1998. The adjudicator dismissed the appellant's appeals and the Immigration Appeal Tribunal (IAT) upheld that decision on 20 May 2002. Permission to appeal to the Court of Appeal was granted by Buxton LJ on one ground (Article 8) with hesitation; other grounds were refused. The appellant renewed the application for permission on other grounds before the court.

Facts: The appellant and her partner had cohabited in Prague for about two years. They experienced verbal abuse, had rubbish placed at their door and obscene drawings, and the appellant lost her job after being seen holding hands with her partner. On 19 June 2001 five attackers broke into the flat and beat both women. The appellant and her partner complained to the police but, in her account, the police laughed and no effective investigation followed. They left for the United Kingdom two months later. The adjudicator did not question the appellant's credibility.

Issues framed:

• Whether removal to the Czech Republic would breach Article 8 of the European Convention on Human Rights (right to respect for private and family life) because of likely treatment there.
• Whether Article 3 (prohibition of torture and inhuman or degrading treatment) was engaged by the facts.
• Whether Article 14 added anything to the Article 8 claim.
• Whether the appellant had a well-founded fear of persecution under the Refugee Convention, including persecution by non-state agents and state inability or unwillingness to provide protection.

Court's reasoning and decision: The court held Ullah [2002] EWCA Civ 1856 binding: where an alleged breach arises from treatment in the receiving state, Articles other than Article 3 are not normally engaged. The court endorsed the margin of appreciation and the practical difficulty for domestic courts to assess proportionality balances in foreign states. On the facts, the court accepted the positive obligation to provide effective respect for private life but agreed with the tribunals that the Czech Republic had mechanisms to address discrimination and police complaints, which the appellant did not pursue. The incidents, including a single violent episode, did not reach the severity threshold for Article 3. The acts of private discrimination did not amount to state discrimination for Article 14. The adjudicator and the IAT were entitled to conclude there was no persecution under the Refugee Convention given the lack of evidence that the state was unable or unwilling to protect and the limited prospects of successful investigation without identification of attackers. The appeal was dismissed and costs were to be assessed.

Appeal dismissed. The court held (1) Ullah [2002] EWCA Civ 1856 is binding: absent a real risk engaging Article 3, domestic courts are not required to treat other Convention Articles as engaged by treatment in the receiving state; (2) on the facts the appellant did not establish an interference with Article 8 arising from state failure to protect; (3) the incidents did not attain the severity required by Article 3; (4) Article 14 added nothing; and (5) the tribunal's conclusion that there was no persecution under the Refugee Convention was open to them.

Appeal from an Immigration Appeal Tribunal decision dated 20 May 2002 (His Honour Judge P M Lakin). Permission to appeal to the Court of Appeal was granted by Buxton LJ on one ground (Article 8) and refused on others. The Court of Appeal heard the appeal and dismissed it. The judgment relied on Ullah v Secretary of State for the Home Department [2002] EWCA Civ 1856, which had leave to appeal to the House of Lords (appeal not yet heard at the time of this judgment).