Hadiova v Secretary of State for the Home Department

Where an alleged Convention breach arises solely from treatment likely to occur in the receiving state, and the treatment falls below the severity required for Article 3, an English court is not required to recognise that another Convention right is engaged. That approach applies to Article 8 where the complaint concerns conditions abroad rather than removal itself. Article 8(1) includes positive as well as negative obligations, but isolated discrimination and violence will not establish a breach where effective state protection and complaint mechanisms exist. For Article 3, treatment must reach the requisite severity. In refugee claims based on non-state persecution, the claimant must show both persecution and that the state is unwilling or unable to provide protection. The approach in Ullah v The Secretary of State for the Home Department [2002] EWCA Civ 1856 was applied.

The appellant, a Roma lesbian citizen of the Czech Republic, claimed asylum in the United Kingdom. She alleged racial and sexual-orientation persecution, including verbal abuse, discrimination, loss of employment and one violent attack. The Secretary of State refused the claim and concluded that removal would not breach the United Kingdom’s human-rights obligations. An adjudicator dismissed the appeal, and the Immigration Appeal Tribunal dismissed her further appeal. Permission to appeal to the Court of Appeal was granted only on the Article 8 issue; permission on other grounds was renewed before this court. The central issues were whether removal would breach Article 8, whether the treatment engaged Articles 3 or 14, and whether the appellant had established persecution by non-state agents without effective state protection.

Appeal dismissed. The court unanimously dismissed the Article 8 appeal and refused the renewed application for permission on the remaining grounds. Keene LJ gave the first judgment, with Tuckey LJ and Peter Gibson LJ agreeing.

1. Article 8 and treatment abroad. Ullah was binding and rightly decided. Where removal itself does not interfere with private or family life in the United Kingdom, but the complaint is based on treatment likely to occur in the destination state, the English court is not required to recognise engagement of another Convention right where the treatment is insufficiently severe to engage Article 3. The approach was not inconsistent with Z (2002) EWCA Civ 952, which had not determined the issue.
2. Qualified rights and foreign-state judgment. Articles 8 and 9 are qualified rights. An English judge is ill placed to decide whether a foreign state’s interference with private life is necessary and proportionate, lacking the relevant evidence and needing to respect international comity. The margin of appreciation reinforced that conclusion, as explained in Handyside v United Kingdom [1976] 1 EHRR 737.
3. Article 8(1). The right to private life has negative and positive aspects. The evidence, including the legal status of lesbian relationships, the existence of relevant organisations, general tolerance, police protection and complaint mechanisms, did not show that the Czech state had failed to secure effective respect for private life. The Immigration Appeal Tribunal was entitled to reach that conclusion.
4. Articles 3 and 14. Article 3 requires treatment to reach a minimum level of severity. Verbal abuse, garbage placed outside the home, loss of employment and a single violent incident did not compel a finding of degrading treatment, nor did the evidence show a failure by the Czech state to protect. No discriminatory legislation or other direct state action was alleged, so the acts of private individuals did not establish an Article 14 breach.
5. Refugee Convention. Whether ill-treatment amounts to persecution is often a matter of judgment. The appellant had not shown that the Czech authorities were unwilling or unable to provide protection. The attackers were unidentified, and available machinery for complaining about police inactivity had not been used. The adjudicator’s conclusion was therefore not open to challenge.
6. Orders. The appeal was dismissed. The renewed application for permission to appeal was refused. There was to be a detailed assessment of the appellant’s costs.

• Court of Appeal (Civil Division): in [2003] EWCA Civ 701, dismissed the appeal on the Article 8 ground and refused renewed permission on the remaining grounds.
• Immigration Appeal Tribunal: on 20 May 2002, dismissed the appellant’s appeal against the adjudicator’s decision.
• Adjudicator: dismissed the asylum and human-rights appeals after the Secretary of State refused the asylum claim and concluded that removal would not breach the United Kingdom’s human-rights obligations.