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

In an asylum or Article 3 claim based on a risk from non-state agents, the claimant must establish a real risk of the feared harm on return. Where the alleged perpetrators had a substantial opportunity to repeat the harm before departure but did not do so, the tribunal may conclude that the future risk is not established.

The sufficiency of state protection depends on the authorities’ willingness and ability to provide protection reasonably capable of meeting and overcoming the real risk, assessed in light of the level of risk. A tribunal’s reasoning may be defective, but judicial review will fail where the decision was otherwise legally sustainable and there was no real prospect of a successful appeal.

The claimant, a Moldovan national, sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal against an Adjudicator’s dismissal of her asylum and Article 3 claims.

The Adjudicator accepted that the claimant had been raped and assaulted by four men, but rejected important parts of her account and found no reason to believe that the perpetrators would seek her out on return. The claimant argued that the evidence of trafficking, the alleged threats, and the inadequacy of protection made that conclusion irrational. The central issues were whether there was a real risk of renewed kidnapping for prostitution and whether the Moldovan authorities could provide sufficient protection.

1. Judicial review dismissed. The Immigration Appeal Tribunal was entitled to uphold the Adjudicator’s conclusion that the claimant had not established a real risk that the gang who attacked her would kidnap her for prostitution if she returned to Moldova.
2. The Adjudicator had proceeded on the basis that the claimant’s account of the intended trafficking and threats was accepted. Even on that basis, the claimant remained in the same small village for just over two weeks after the attack. The gang therefore had a substantial opportunity to kidnap her, but did not do so. The conclusion that they were unlikely to seek her out on return was open to the Adjudicator and was not irrational.
3. In relation to protection from non-state agents, the relevant question was the combination of the authorities’ willingness and ability to provide protection to a level reasonably capable of meeting and overcoming the real risk of harm. What amounted to reasonable protection depended on the level of risk: R (on the application of Dhima) v IAT [2002] EWHC 80 (Admin), [2002] INLR 243.
4. The Adjudicator had found that the police conducted such investigations as were open to them, given the absence of witnesses or other evidence and the claimant’s inability to identify her attackers. There was no finding of state complicity or support for the attack, and the rape was not part of a sustained campaign of persecution knowingly tolerated by the authorities. Those findings meant that there was no real prospect of an appeal succeeding on sufficiency of protection.
5. The Tribunal’s statement that the protection ground failed because the evidence did not show that the claimant had come to the attention of traffickers was not a good reason, since the Adjudicator had made no such adverse finding. Nevertheless, the ground had no real prospect of success for the reasons independently given by the High Court.

Permission for judicial review was refused on paper and subsequently granted by Gibbs J after an oral hearing. The High Court dismissed the application.