Ikaeva v Secretary of State for the Home Department

For permission purposes, a tribunal must not assume that a claim under Article 3 of the European Convention on Human Rights is answered merely by findings which defeat a Refugee Convention claim. The two inquiries may differ. In particular, Article 3 may not require persecution of the systematic kind contemplated by the Refugee Convention, and the question of state protection may not arise in precisely the same terms as under the doctrine of Horvath. Where an adjudicator and the Immigration Appeal Tribunal have treated the issues as interchangeable, an appeal on the legal adequacy of the Article 3 reasoning is arguable.

The appellant sought renewal of an application for permission to appeal from the Immigration Appeal Tribunal. The adjudicator accepted her account of repeated attacks on herself and her sons in Russia, but concluded that the conduct was not persecution and, alternatively, that any persecution was not caused by a failure of state protection. He also found that she could relocate internally. The Immigration Appeal Tribunal upheld the first findings and treated the Article 3 claim as resolved by the same reasoning.

The central issue was whether the adjudicator and/or the Immigration Appeal Tribunal had dealt adequately in law with the appellant’s separate claim that return would expose her to a real risk of treatment contrary to Article 3.

1. Permission granted in part. Permission to appeal was granted on the single issue whether the adjudicator and/or the Immigration Appeal Tribunal dealt adequately in law with the Article 3 claim. The application to admit further evidence was adjourned to the full court.
2. The adjudicator’s findings that the accepted events did not amount to persecution, and that any persecution was not attributable to a failure of state protection, were regarded as unassailable. The latter finding reflected the doctrine of Horvath: the state is not a guarantor of protection, but must do what a state should reasonably attempt to do to protect its citizens from violence.
3. Those findings concluded the Refugee Convention issue. The internal-relocation findings were therefore otiose. Although they appeared arguably inadequately reasoned, no appellate consequence could depend on them.
4. The Article 3 issue required separate consideration. It was arguable that the adjudicator could not simply rely on the preceding Refugee Convention findings to exclude a real risk under Article 3, and that the Immigration Appeal Tribunal could not properly treat persecution and Article 3 treatment as identical. It was also arguable that Article 3 does not require systematic persecution and does not pose the state-protection question in exactly the same terms as Horvath.

• Court of Appeal (Civil Division): on renewal, granted permission to appeal on the Article 3 adequacy issue only. The application to admit further evidence was adjourned to the full court.
• Immigration Appeal Tribunal: held that the adjudicator had made no error of law and treated the Article 3 and persecution issues together.