Regina v. Secretary of State for the Home Department (Respondent) ex parte Bagdanavicius (FC) and another (Appellants)

Article 3 of the European Convention on Human Rights bars removal where substantial grounds show a real risk of treatment contrary to that article in the receiving country. Where the threat comes from non-state agents, serious harm alone is insufficient. The claimant must also show that the receiving state would fail to provide a reasonable level of protection.

Reasonable protection means reasonable protective measures; it need not eliminate every residual risk. The expelling court does not adjudicate the receiving state’s actual responsibility, but must assess local conditions to decide whether an actual or notional article 3 violation is a real risk. An exceptional humanitarian case may engage article 3 without such a violation, but that exception is very narrow.

The appellants were a Lithuanian married couple with a young child. The husband was Roma and the wife was not. They had suffered persistent harassment and violence from the wife’s brother and his associates because of the marriage. After entering the United Kingdom, they claimed asylum and contended that removal to Lithuania would breach article 3 of the European Convention on Human Rights.

The Secretary of State refused leave to enter and certified the claims as clearly unfounded under section 115 of the Nationality, Immigration and Asylum Act 2002. Maurice Kay J dismissed their judicial review claim, and the Court of Appeal dismissed their appeal in [2003] EWCA Civ 1605, reported at [2004] 1 WLR 1207. For this litigation, the Secretary of State accepted a real risk of serious injury from non-state agents, while the appellants accepted that Lithuania provided a reasonable level of protection. The central issue was whether the risk of serious harm alone barred removal or whether insufficient state protection also had to be shown.

1. Disposition. Lord Brown of Eaton-under-Heywood delivered the leading speech. Lord Nicholls, Lord Hope, Lord Walker and Baroness Hale agreed with his reasons. The House unanimously dismissed the appeal.
2. The removal principle. Per Lord Brown, article 3 of the European Convention on Human Rights prohibits expulsion where substantial grounds show a real risk of treatment contrary to article 3 in the receiving country. The principle in Soering v United Kingdom (1989) 11 EHRR 439 concerns the expelling state’s responsibility for exposing the person to that risk.
3. Assessment of the receiving country. The court need not adjudicate upon or formally establish the receiving state’s responsibility. It must nevertheless assess conditions there to determine whether the person faces a real risk of harm involving an actual or notional article 3 violation. Serious harm which would not involve such a violation is insufficient.
4. Non-state agents. Where harm is threatened by non-state agents, an applicant must establish both a real risk of serious harm and a failure by the receiving state to provide reasonable protection. Violence by private persons does not become article 3 ill-treatment for removal purposes merely because it is serious. The additional failure of state protection is required.
5. Reasonable protection. Lord Brown applied the two independent requirements identified in HLR v France (1997) 26 EHRR 29. Appropriate protection need not remove every risk. Approving Sedley LJ’s reasoning in McPherson v Secretary of State for the Home Department [2002] INLR 139, Lord Brown held that the state must take reasonable protective measures, rather than guarantee safety. The accepted adequacy of Lithuania’s protection therefore defeated the claim despite the conceded risk of injury.
6. Subsidiary guidance. Lord Brown treated D v United Kingdom (1997) 24 EHRR 423, where article 3 applied without an actual or notional receiving-state violation, as very exceptional. Its exceptional character had been confirmed by N (FC) v Secretary of State for the Home Department [2005] UKHL 31. He also observed that non-state persecution under the Convention and Protocol relating to the Status of Refugees similarly requires insufficient home-state protection and that, in most removal cases, an article 3 claim will add little to an asylum claim.

1. House of Lords: In [2005] UKHL 38, unanimously dismissed the appeal and left the Court of Appeal’s decision undisturbed.
2. Court of Appeal: Lord Woolf CJ, Auld LJ and Arden LJ dismissed the appellants’ appeal on 11 November 2003: [2003] EWCA Civ 1605, reported at [2004] 1 WLR 1207.
3. High Court: Maurice Kay J dismissed the application for judicial review on 16 April 2003.
4. Secretary of State: On 14 December 2002, refused the applications for leave to enter and certified the asylum and article 3 claims as clearly unfounded under section 115 of the Nationality, Immigration and Asylum Act 2002.