Asylum - real risk of inhuman or degrading treatment by non-state actors in country of origin - risk threshold similar to 'well-founded fear of persecution'

R (Bagdanavicius and another) v Secretary of State for the Home Department: CA (Lord Woolf, Chief Justice, Lord Justice Auld and Lady Justice Arden): 11 November 2003

The claimants, who were married, arrived in the UK from Lithuania where, they alleged, they had been subjected to persistent harassment and violence by the wife's brother and his associates who, they claimed, were members of the Lithuanian Mafia, because the brother objected to his sister marrying a person of Roma origin.

They claimed asylum on the basis that they had a well-founded fear of persecution if they were returned to Lithuania and that such return would put the UK in breach of article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms by exposing them to a real risk of inhuman or degrading treatment.

The home secretary refused the claims and certified them as clearly unfounded pursuant to section 115 of the Nationality Immigration and Asylum Act 2002 on the grounds that there was no breach of article 3 because the alleged conduct did not reach the required threshold of seriousness and because there was sufficiency of state protection in Lithuania.

The judge dismissed their claims for judicial review, holding that the Home Secretary had correctly identified and applied the concept of sufficiency of state protection in asylum cases laid down in Horvath v Secretary of State for the Home Department [2001] AC 489 and had correctly applied it to article 3 and the circumstances of the case.

The claimants appealed.

Andrew Nicol QC and Raza Husain (instructed by Solicitor, Refugee Legal Centre) for the claimants; Monica Carss-Frisk QC and Samantha Broadfoot (instructed by Treasury Solicitor) for the Home Secretary.

Held, dismissing the appeals, that in most, if not all, cases where asylum seekers claimed that there would be a real risk of article 3 ill-treatment if they were returned to their country of origin the concept of risk had the same or a closely similar meaning to that of 'a well-founded fear of persecution' in the Convention and Protocol relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906), save that it was confined to a risk of article 3 forms of ill-treatment and was not restricted to conduct with any particular motivation or by reference to the claimant's conduct; that the threshold of risk required to engage article 3 depended on the circumstances, including the magnitude of the risk, the nature and severity of the ill-treatment risked and whether the risk emanated from a state agency or non-state actor; that in most cases of ill-treatment which, but for state protection, would engage article 3, a risk of such ill-treatment would be more readily established in state-agency cases than in non-state actor cases; that an assessment of the threshold of risk appropriate in the circumstances to engage article 3 necessarily involved an assessment of the sufficiency of state protection to meet the threat of which there was such a risk; that sufficiency of state protection was not a guarantee of protection from article 3 ill-treatment but reasonable provision in the circumstances; that notwithstanding such systemic sufficiency of state protection in the receiving state, a claimant might still be able to establish an article 3 claim if he could show that the authorities there knew or ought to know of particular circumstances likely to expose him to risk of article 3 ill-treatment; and that the approach was the same whether or not the receiving country was a party to the Human Rights Convention but, in determining whether it would be contrary to article 3 to remove a person to that country, the factual issue as to risk should be decided as if convention standards applied there.