Mishto, R (on the application of) v Immigration Appeal Tribunal

State protection must be assessed against the particular risk of harm feared by the claimant. A global assessment of protection for a broad class, such as victims of domestic violence, is insufficient without applying it to the accepted circumstances of the individual case. The Horvath v Secretary of State for the Home Department standard requires a practical system of protection and a willingness to apply it; it does not require the elimination of every risk or a guarantee of protection. A decision applying that standard may be challenged only on the high Wednesbury threshold, subject to anxious scrutiny. A conclusion open to the decision-maker on a balanced assessment of the evidence will not justify judicial review.

The claimant, an Albanian national, sought asylum and human-rights protection based on feared violence from her former partner and his family. A Special Adjudicator decided as a preliminary issue that Albania provided a sufficiency of state protection meeting the Horvath v Secretary of State for the Home Department criteria, and dismissed both appeals without determining credibility.

Following the quashing of a certificate, the Immigration Appeal Tribunal refused leave to appeal, holding that the Adjudicator’s assessment was balanced and his conclusion open to him. The claimant sought judicial review, arguing that the wrong legal test had been applied or that the conclusion was irrational. The central issue was whether state protection had been assessed by reference to her particular circumstances and whether the IAT had lawfully refused leave.

1. The claim was dismissed. The IAT had correctly refused leave because there was no real prospect of an appeal succeeding.
2. The sufficiency of state protection cannot be considered in isolation from the individual case. It must relate to the risk of harm feared. A statement of the general position, without applying it to the accepted parameters of the claimant’s case, is inadequate.
3. The Adjudicator had nevertheless considered the claimant’s particular circumstances. Her feared violence arose largely from threats of revenge connected with a former relationship and family conflict, rather than from an existing domestic relationship. The evidence therefore had to be assessed in that context, including the possibility that any violence would be treated as ordinary criminal assault.
4. The Adjudicator had applied the correct Horvath standard. That standard requires a practical system of protection and a willingness to apply it, but does not require an absolute guarantee. The Adjudicator considered adverse evidence concerning police inaction and the burden placed on victims, alongside positive evidence concerning the legal framework, police training and support services.
5. The challenge was essentially one of irrationality. Although other decision-makers might have reached a different conclusion, the Adjudicator’s balanced assessment was one which a reasonable decision-maker could reach. The decision therefore survived anxious scrutiny and was not arguably perverse in the Wednesbury sense.
6. An application for leave to appeal from the order was refused because no grounds were advanced and there was no real prospect of success. Costs were ordered in the usual terms applicable to a publicly funded party.

• Special Adjudicator: dismissed the claimant’s asylum and human-rights appeals after deciding that Albania provided sufficient state protection.
• Immigration Appeal Tribunal: refused leave to appeal on 9 October 2002, concluding that the Adjudicator’s assessment was balanced and open to him.
• High Court (Administrative Court): dismissed the judicial review claim and refused leave to appeal.