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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kandrac, R (on the application of) v Secretary Of State For Home Department [2001] EWCA Civ 1575 (22 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1575.html Cite as: [2001] EWCA Civ 1575

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IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST

		The Royal Courts of Justice The Strand London Monday 22 October 2001

Monday 22 October 2001

1. LORD JUSTICE SIMON BROWN: The applicant is a Roma of Czech nationality. He applies for permission to appeal against the order of Ouseley J on 2 February 2001 refusing him permission to apply for judicial review of the determination of a special adjudicator on 16 February 2000 dismissing his appeal against the Secretary of State's refusal of his asylum application and, in addition, upholding the Secretary of State's certification of his asylum claim as manifestly unfounded.
2. I am most grateful to Mr Pipi who, very creditably, has argued today's application on an unpaid basis. He will, I hope, forgive me if I deal with it comparatively shortly. The reason I can do so is because in my judgment Ouseley J below dealt with both points that arise in this case entirely correctly. I need not repeat the facts, which are sufficiently summarised in the judgment below, and which are available both there and in the special adjudicator's determination to anyone who wishes a more detailed exposition.
3. The first point in the case is whether the special adjudicator had been entitled to conclude that the appellant, on return to the Czech Republic, would there receive sufficient protection to satisfy what I may call the Horvath test. Mr Pipi submits that he would not. He does so on this basis (and I take it conveniently from paragraph 8 of his helpful written skeleton argument):

" ... on the facts of this case, there is no reasonable willingness by the police to detect and prosecute offenders. The entire system of protection breaks down at this stage because until the police detect offenders and prosecute them, there is nothing, by way of protection, the courts can do. Bearing the background of the claimant in mind, it is inconceivable that he would commence private investigation and prosecution. Lack of reasonable willingness by the police to detect and prosecute offenders is sufficient to signal to this claimant that there is absence or very ineffective state protection for him and his family."

4. The answer to that, however, is to be found in paragraphs 6, 7 and 8 of the judgment below. Paragrah 6 cites Lord Clyde in Horvath [2000] 3 WLR 379 at 398: "... the corruption, sympathy or weakness of some individuals in the system of justice does not mean that the state is unwilling to afford protection." The judge below rightly observed that it was inherent in that statement that.

"... there will be times when an individual Roma will seek and fail to obtain the assistance of the police, but that will not constitute either persecution or a failure on the part of the state to provide protection either as a matter of unwillingness or inability."

5. Where, as here, a Roma finds (as noted by the judge in paragraph 7 of his judgment) "the police unwilling to assist ... abusively dismissive and positively unhelpful" he should, as it seems to me, complain to other branches of the Czech executive who, as the evidence shows, are concerned to punish police officers who fail in their duty to investigate racially motivated crime. The Czech Republic is a democracy: the police ultimately are to be held accountable.
6. As to certification, the judge concluded that, once it was recognised that state protection is available, then it was a simple task to determine that the applicant's asylum claim was manifestly ill-founded. Mr Pipi submits that this would lead to every asylum claim being held manifestly ill-founded unless it is actually proved sustainable. I disagree. I can see no reason why a claim such as this, namely a claim by a Roma from the Czech Republic for asylum, should not be certified unless there appears to the Secretary of State some good reason to suppose that, most unusually, the particular applicant, despite the recognised ability and willingness of the Czech state generally to provide protection, would nonetheless be unable to avail himself of it and so would be able to establish his claim for asylum on a highly individual basis. One notes what the special adjudicator said at pages 2 and 3 of his determination:

"The Appellant would have to show to bring himself within the scope of the Convention that these incidents were not simply the random actions of individuals but were a sustained pattern or campaign of persecution directed at him which was knowingly tolerated by the authorities or that the authorities were unable or unwilling to offer any effective protection to him. The Secretary of State took the view that the Appellant could have sought redress through the proper authorities before seeking international protection."

7. The fact is that a great number of these particular claims have now been dealt with, not merely by the Secretary of State but also by the independent appellate authorities and indeed the courts. The recent decision of this court in Koller [2001] EWCA Civ 1267 is here relevant. Of course I recognise that the particular point dealt with there, namely second appeals from the IAT to this court, does not arise here. Indeed that situation is necessarily avoided by certification. Nevertheless, it is worth noting that Koller was another case where a Czech Roma failed in his claim that he would be unable to look to the state for protection were he to be returned home.
8. I acknowledge, of course, that each case has to be considered on its own facts, but one looks too for some consistency of approach. Really there is nothing on the facts of this case to distinguish it from the general run of these cases, many of which, alas, involve random assaults by skinheads on persons of Roma ethnic origin and police failures properly to investigate and prosecute the assailants. Mr Pipi draws my particular attention to the very full letter of 5 October 1999 by which the Secretary of State, acting through the Immigration and Nationality Directorate, initially refused this applicant's claim. The great bulk of that letter, however, is concerned to set out all the material accumulated by the Secretary of State to support his view that nowadays the Czech Republic is indeed to be regarded as a state which satisfies the Horvath requirements.
9. In my judgment, therefore, ably argued though they were, there is no substance in either of the two proposed grounds of appeal. I must accordingly refuse this application.
ORDER: Application refused.