Regina v Secretary of State for the Home Department ex parte Bagdanavicius & Anor

The House of Lords held that where the risk of serious harm on return to another state arises from non-state agents, an article 3 claim to resist removal requires proof not only of a real risk of treatment contrary to article 3 ECHR but also that the receiving state would be unable or unwilling to provide a reasonable level of protection. In non-state agent cases the question is whether the risk, if it materialised, would amount to treatment contrary to article 3; that will depend upon a failure by the state to discharge its positive obligation to protect. The court distinguished exceptional authorities (notably D v United Kingdom) and reaffirmed the Soering principle as requiring assessment of whether the risk amounts to proscribed ill-treatment in the receiving country.

The appellants, a Lithuanian husband and wife with a young child, claimed asylum in the United Kingdom and argued that removal to Lithuania would breach article 3 of the European Convention on Human Rights because they faced serious violence from non-state agents. Their asylum and article 3 claims were refused by the Secretary of State, the refusal was judicially reviewed and dismissed by Maurice Kay J, and the Court of Appeal dismissed their subsequent appeal. The central legal issue before the House of Lords was whether, in cases where the risk arises from non-state actors, an applicant need only show a real risk of serious harm on return or must also show that the receiving state would fail to provide reasonable protection against that harm.

The House analysed the Soering line of jurisprudence and subsequent Strasbourg authorities and concluded that the relevant risk for article 3 purposes is a risk of treatment contrary to article 3. In non-state agent cases violent acts by private persons will amount to article 3 ill-treatment only if the state has failed in its positive obligation to provide reasonable protection. The appellants had conceded that Lithuania provided a reasonable level of protection and the Secretary of State had conceded there was a real risk; the determinative point was that a real risk of private violence alone does not engage article 3 unless state protection is insufficient. The House therefore dismissed the appeal.

The court also noted that D v United Kingdom was exceptional, discussed the relationship between article 3 and the Refugee Convention (observing similar practical requirements where non-state agents are involved), and commented that in most cases an article 3 claim will add little to an asylum claim.

The appeal was dismissed. The House held that for article 3 to bar removal where the risk arises from non-state agents the applicant must demonstrate both a real risk of treatment contrary to article 3 and that the receiving state would not provide a reasonable level of protection; violent acts by private persons amount to article 3 ill-treatment only when the state fails in its positive obligation to protect.

Initial refusal of leave to enter and certification by the Secretary of State (14 December 2002); judicial review dismissed by Maurice Kay J (16 April 2003); Court of Appeal dismissed the appellants' appeal [2003] EWCA Civ 1605 and reported decision cited at [2004] 1 WLR 1207; appeal to House of Lords allowed to be heard and dismissed on 26 May 2005 ([2005] UKHL 38).