VT (Kazakhstan) v Secretary of State for the Home Department

Whether persecution is attributable to the state, and whether state protection is adequate, are ordinarily factual questions assessed on the evidence. Where ill-treatment involves state officers, the inquiry falls on a spectrum between conduct by wholly non-state agents and conduct for which the state is wholly complicit. The question is whether, in the circumstances, the state can properly be regarded as providing sufficient protection. An appellate challenge to the tribunal’s conclusion must identify an error of law or show that the conclusion was perverse. A disagreement with the factual assessment, without more, gives no realistic prospect of success.

Two ethnic Russian citizens of Kazakhstan, a father and son, appealed against the dismissal of their asylum and human-rights claims. An adjudicator accepted much of the father’s account of threats and attacks, including conduct involving state officials, but concluded that the appellants had no well-founded fear of state persecution and that adequate state protection was available. The Asylum and Immigration Tribunal upheld that determination on 9 August 2007. The renewed application for permission to appeal concerned whether the adjudicator had addressed state persecution and had applied the correct approach to state protection where alleged persecutors included uniformed state officers.

1. Application refused. The renewed application for permission to appeal had no realistic prospect of success.
2. The adjudicator had plainly addressed whether the first appellant was a victim of state persecution. The adjudicator considered the evidence, including the matters identified at paragraph 22 of the adjudication, and gave reasons for finding that neither appellant had a well-founded fear of persecution from the state.
3. The adjudicator had also addressed whether the state could provide adequate protection. His conclusion that a system existed for punishing offenders, and that the first appellant’s position was no worse than that of any other law-abiding citizen, was a conclusion reached on the evidence.
4. The approach described in Svazas v SSHD [2002] 1 WLR 80, at 91, recognises a spectrum between ill-treatment solely by non-state agents and cases in which the state is wholly complicit. The practical question within that spectrum is whether the state can properly be said to provide sufficient protection.
5. That inquiry is essentially factual. It was conceded that no incorrect approach to law could be demonstrated. The challenge therefore amounted to disagreement with the adjudicator’s factual conclusion and did not establish an error of law or perversity. Lord Justice Toulson concurred with Keene LJ’s view on the papers that the adjudicator was entitled to find that the attacks were not condoned by the state and that adequate state protection existed.

Order: Application refused.

• Court of Appeal (Civil Division) — The renewed application for permission to appeal from the Asylum and Immigration Tribunal’s determination dated 9 August 2007 was refused. The Tribunal had upheld the adjudicator’s determination dated 15 April 2005 dismissing the asylum and human-rights appeals.