The Conceptualisation of 'Persecution' by the House of Lords: Horvath ...

The Conceptualisation of ‘Persecution’ by the House of Lords: Horvath v. Secretary of State for the Home Department HE´ LE` NE LAMBERT∗

1. Introduction In a reserved judgment of 6 July 2000, Horvath v. Secretary of State for the Home Department,1 the House of Lords answered ‘Yes’ to the fundamental question: Is the protection afforded by (or lacking from) the State a necessary element in the concept of persecution under article 1A(2) of the 1951 Convention relating to the Status of Refugees, 1951? In particular, the House of Lords was asked to consider the meaning of a ‘fear of being persecuted’ when persecution occurs at the hands of nonState entities, for which the State has no direct responsibility. In other words, the principal question of law raised by the appeal was when does the failure of the State to protect its own nationals enter into play in the determination of refugee status, when assessing whether the ill-treatment feared by the applicant amounts to persecution or only subsequently, as a separate issue, once a ‘well-founded fear of being persecuted for reasons’ specified in article 1A(2) has been shown? The appeal raised two further issues summarily considered by the House of Lords. Firstly, it raised the question whether it is sufficient for a ‘fear’ of persecution by non-State actors to originate merely from nonState actors or whether the failure or absence of State protection is also required. In view of its answer to the principal question, the majority at the House of Lords agreed with the latter.2 Secondly, the appeal raised ∗ Lecturer in Law, University of Exeter. I wish to thank particularly John Bridge, Theo Farrell, Hugo Storey and Rick Towle for their most helpful comments on previous drafts. 1 [2001] 1 AC 489; [2000] 3 WLR 379. The text of the judgment is reprinted below, at 174–201. 2 See, in particular, Adan v. Secretary of State for the Home Department [1999] 1 AC at 305. This issue will not be discussed any further in this case commentary. International Journal of Refugee Law Vol. 13 No. 1/2  Oxford University Press 2001. All rights reserved

Electronic copy available at: http://ssrn.com/abstract=1335237

The Conceptualisation of ‘Persecution’ by the House of Lords

17

the question of when can we be satisfied that a sufficient level of protection is provided by the State. It was agreed by the majority that the test to be applied must be a practicable one and that absolute guaranteed immunity is not to be expected. More particularly, the level of protection must be assessed by reference to the State’s reasonable willingness to afford protection in the light of present and future events. 1.1 Summary of the facts The appeal was brought by Mr Milan Horvath, a member of the Roma community (a small minority also known as ‘gypsies’) and a citizen of the republic of Slovakia. He lived with his family in a village, Palin, in the county of Michalovice. On 15 October 1997 he arrived in the United Kingdom with his wife and child and claimed asylum. He stated that he feared acts of intimidation and physical violence by skinheads in his home country and that the Slovak police failed to provide protection for Roma. He also stated that along with other Roma, he had been unable to find work, and that he had not been afforded the normal public facilities as to his marriage and schooling for his child.3 He claimed that he and his family were afraid to return to Slovakia because they would continue to be attacked by skinheads and that they would not get protection from the police. His application for asylum was refused by the Secretary of State, and his appeal was dismissed by the Special Adjudicator on the grounds that he was not a credible witness. The Immigration Appeal Tribunal reversed the decision on credibility of the Special Adjudicator finding instead that Mr Horvath’s statements of fact were consistent with the evidence existing in relation to the position of Roma in Slovakia — among the evidence were reports of the UNHCR, the US State Department, the International Helsinki Federation for Human Rights and the Organization on Security and Co-operation in Europe. The Tribunal found Mr Horvath’s fear of violence by the skinheads to be well-founded. However, it concluded that his fear did not amount to persecution because he had failed to show a lack of State’s protection.4 The Court of Appeal (Stuart-Smith, Ward and Hale LL.J.) unanimously dismissed his appeal against the findings of the Tribunal, although there was a difference of opinion between the three judges with regard to the possible link between persecution and the absence or failure of State protection.5 Ward and Hale LL.J. regarded the willingness of the State to offer protection as part of the concept of persecution. Stuart-Smith L.J., on the other hand, viewed the elements of persecution and State 3 The latter acts were held by the Immigration Appeal Tribunal not to amount to persecution because of lack of sufficient severity. Thus only the risk of acts of intimidation and physical violence formed the factual basis for the appeals. 4 Horvath v. Secretary of State for the Home Department [1999] Imm AR 121. 5 Horvath v. Secretary of State for the Home Department [2000] Imm AR 205.

Electronic copy available at: http://ssrn.com/abstract=1335237

18

He´le`ne Lambert

protection as two separate issues. Finally, the House of Lords (Lord Hope of Craighead, Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Clyde, Lord Hobhouse of Woodborough) confirmed the majority view taken by the Court of Appeal and dismissed the appeal in a judgment of 6 July 2000.6

2. The meaning of persecution in international law There exists no comprehensive definition of the word ‘persecution’ in international law.7 The drafters of the Refugee Convention opted for an open-ended and flexible approach to the concept of persecution in the form of a universal framework.8 Article 1A(2) of the Refugee Convention defines a ‘refugee’ as ‘any person who . . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country . . .’ 2.1 Principles of treaty interpretation According to the general rule of interpretation of treaties (article 31 of the Vienna Convention on the Law of Treaties, 1969), words and phrases in treaties must first be interpreted according to their plain and natural meaning, unless such interpretation were to lead to an obviously erroneous result. In considering such ordinary meaning, account must be taken of the intention of the parties at the time of conclusion of the treaty. Furthermore, treaties must be interpreted in their context and in the light of their object and purpose. In a refugee law context, it is generally agreed that norms of protection are framed within a human rights context,9 and that the purpose of the Refugee Convention is to provide substitute protection and fair treatment in the absence or unavailability of national protection; this is the principle of surrogacy as conceptually developed by Hathaway.10 6

[2000] 3 WLR 379. See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 1979, para. 51; also para. 4, Joint Position of the Council of the European Union on the harmonized application of the definition of the term ‘refugee’ in article 1 of the Geneva Convention of 28 July 1951 relating to the Status of Refugees (O.J. 1996 L63/2). 8 Anker, D., Law of Asylum in the United States, 3rd edn. 1999, 171–3. 9 Steinbock, D. J., ‘The refugee definition as law: issues of interpretation’, in Refugee Rights and Realities — Evolving International Concepts and Regimes (Nicholson, F., and Twomey, P., eds.) 1999, 29–33. See also, Lord Steyn’s remark in Islam v. Secretary of State for the Home Department [1999] 2 WLR 1021G, and the Preamble to the Refugee Convention, according to which, ‘the United Nations has . . . endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms’ provided in the 1948 Universal Declaration of Human Rights and the 1945 UN Charter, without discrimination, in the asylum state. 10 Hathaway, J., The Law of Refugee Status, (1991), 125. See also, Anker, D., Law of Asylum, above n. 8, 184. R v. Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958, 992H993A; Canada (Attorney-General) v. Ward [1993] 2 SCR 689. 7


19

According to Anker, principles of international human rights law have shaped the way we determine persecution. She identifies certain general principles as important standards against which any analysis of the word ‘persecution’ ought to be made.11 First, persecution must be interpreted in a universal and flexible manner. Second, persecution requires a serious harm but it is not limited to severe physical harm or threats to life or freedom. Here, she identifies the ‘principle of non-discrimination [as] “the backbone of human rights and inherent in the body of international law”.’12 Third, persecution requires ‘a fundamental failure of the State in providing protection’ against serious harm. A fourth principle could be added: the State does not need to be the persecutor; persecution may be at the hand of non-State actors if the State is either unwilling or unable to assume its duty of protection to its nationals, for example, to control the activities of these non-State entities.13 Not all academic writers and national courts have accepted all of these principles. The following discussion focuses on the third principle, that is, persecution requires the absence or failure of State protection (against a serious harm), its understanding by academic writers, the UNHCR and the EU, and its application by the British courts.

3. The linkage between failure of State protection and persecution 3.1 Academic writing and international jurisprudence Hathaway defines the word ‘persecution’ as ‘the sustained or systematic violation of basic human rights demonstrative of a failure of State protection’ (emphasis added).14 This holistic view, according to which the concept of ‘persecution’ in article 1A(2) of the Refugee Convention contains the notion of State’s failure of protection, echoes Goodwin-Gill’s writing which argues that persecution includes breaches where ‘the degree of protection normally to be expected of the government is either lacking or denied’.15 In The Refugee in International Law, Goodwin-Gill conceives persecution in terms of reasons (namely, the five Convention grounds), interests (that is, the rights threatened and in need of protection) and measures

11

Anker, D., Law of Asylum, above n. 8, 176–7 and section II of chapter 4. Ibid., 179. 13 Anker lists an additional requirement that persecution necessitates a normative source distinguishable from the five Convention grounds (race, religion, nationality, membership of a particular social group and political opinion): ibid., 178, 181. 14 Hathaway, Law of Refugee Status, above n.10, 104–5 (see also generally Chapter 4). 15 Goodwin-Gill, G. S., The Refugee in International Law, 1st edn. (1983), 38–46. See also GoodwinGill, G. S., ‘Non-Refoulement and the New Asylum Seekers’, 26 Virginia Journal of International Law 901 (1986). 12

He´le`ne Lambert

20 16

(namely, the ill-treatment). This holistic view is further shared by GrahlMadsen,17 Shacknove,18 and Anker.19 Anker’s analysis of the linkage between persecution and State’s failure to provide protection is particularly helpful for its clarity. The starting point of her analysis is the notion of ‘State’s legitimacy [which] is based on its ability [and duty] to protect the basic needs and rights of its citizens’.20 She further comments that this is the case whether or not the threat to basic needs and rights is caused by official acts of the State or by acts from private individuals when the State is unwilling or unable to control the activities of these individuals.21 The purpose of refugee law is to offer surrogate protection when a State fails in its duty. She nevertheless recognises that ‘[p]rotection is not provided against all breaches of rights, but only those violations that States have a duty to prevent. A determination of persecution must encompass an investigation not only into whether a core right is at risk, but also into “the State’s ability and willingness effectively to respond to that risk”.’22 In sum, leading academic writing concurs that the failure (or absence) of State protection is fundamental to the concept of persecution. In addition, this holistic approach is fully consistent with the case law of the European Court of Human Rights,23 the Canadian Supreme Court, the United States, the Human Rights Committee, and the Inter-American Court of Human Rights.24 3.2 The position of the UNHCR UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status provides a useful source of interpretation of article 1A(2) of the Refugee Convention, albeit of limited authority.25 Paragraph 51 of the Handbook 16

Goodwin-Gill, G. S., The Refugee in International Law, 2nd edn. (1996), 77–8. Grahl-Madsen, A., The Status of Refugees in International Law, Vol. I, (1966), 189. 18 He writes: ‘Persecution is but one manifestation of a broader phenomenon: the absence of state protection of the citizen’s basic needs. It is this absence of state protection which constitutes the full and complete negation of society and the basis of refugeehood’. Shacknove, A., ‘Who Is a Refugee?’, 95 Ethics 1985, 277. 19 She recognises that ‘to constitute persecution, a form of harm must be serious in nature . . . and there must be a fundamental failure of the state in providing protection of such a right’. Anker, The Law of Asylum, above n. 8, 177. 20 Ibid., 184. 21 Ibid., 185, 191–9. 22 Ibid., 184–5. See also, Shacknove’s remark that ‘[t]he legitimacy of the state rests exclusively on its control of human actions rather than on its control of natural forces, and the obligation of a government extends no further than the realm of human capabilities.’ Shacknove, A., ‘Who Is a Refugee?’, above n. 18, 279. 23 In H.L.R. v. France (case No.11/1996/630/813, judgment of 29 April 1997) the European Court required a real risk by non-state actors combined with a failure of state protection. 24 Hathaway, Law of Refugee Status, above n. 10, 128–9, 132, and Anker, Law of Asylum, above n. 8, 191–5. 25 Goodwin-Gill, G. S., ‘The Margin of Interpretation: Different or Disparate?’, 11 IJRL 730 (1999). But UNHCR’s understanding of the meaning of ‘persecution’ is rather vague; this is particularly so, argues Harvey, on the question of when prosecution constitutes persecution. Harvey, C., Seeking Asylum in the UK — Problems and Prospects, 2000, 246. 17


21

considers that ‘a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights — for the same reasons — would also constitute persecution’. Other ‘prejudicial actions or threats’ may also constitute persecution, depending ‘on the circumstances of each case’ (paragraph 52). In addition, UNHCR recognises the cumulative effect of acts which if taken individually would not amount to persecution (for example, different forms of discrimination) (paragraph 53). Anyhow, ‘measures of discrimination lead[ing] to consequences of a substantially prejudicial nature for the person concerned’ will amount to persecution (paragraph 54). And paragraph 65 further explains that ‘[w]here serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection’. 3.3 The position of the Council of the European Union The Council of the European Union composed of representatives of the member States adopted a joint position on the harmonized application of the definition of the term ‘refugee’ in article 1 of the Refugee Convention.26 Like the UNHCR Handbook, the Council of the European Union’s position is not legally binding. Paragraph 4 of the joint position provides that for the acts suffered or feared to constitute persecution, they must be sufficiently serious by their nature or repetition (for example, a basic attack on human rights) and be based on one of the five Convention grounds. It further recognises the cumulative effect of acts which if taken individually would not amount to persecution. Paragraph 5 of the joint position is concerned with the ‘origins of persecution’. It considers persecution to be generally an act by the State or parties controlled by the State (paragraph 5.1). When at the hands of third parties, the joint position recognises that an act suffered or feared may be persecution if ‘individual in nature and is encouraged or permitted by the authorities’ (paragraph 5.2). If the authorities fail to act, recognition of refugee status will depend on whether the failure to act was deliberate or not (paragraph 5.2).27 Thus, it follows that a determination of persecution must consist of an enquiry into both the nature of the risk of ill-treatment and the State’s willingness and/or ability to respond effectively to that risk.

26 27

4 March 1996 (O.J. 1996 L63/2). See also para. 6 in cases of civil war or internal or generalised conflict.

22

He´le`ne Lambert

4. Is the failure of State protection fundamental to a determination of persecution for the British courts? The question of whether or not the failure of State’s protection is relevant to a determination of persecution came before a British court for the first time in the case of Horvath v. Secretary of State for the Home Department.28 This question in itself raises two central issues: one conceptual issue (namely, the linkage between State protection and persecution) and one normative issue (namely, the standard of State protection). In preliminary, it may be useful to summarise the position of the British courts vis-a`-vis the principles of flexibility, serious harm, and persecutors. British courts recognise that the Refugee Convention is a living instrument that calls for a dynamic interpretation.29 They require a serious harm but recognise that persecution is not restricted to severe physical harm or threat to freedom or life.30 The universality of the criterion of ‘persistency’ insisted upon by Hathaway remains undecided in British courts.31 In Horvath v. Secretary of State for the Home Department, the House of Lords established (obiter dictum) that serious harm could not amount to persecution unless it was sustained, persistent and systemic. However, the House of Lords was not dealing with a case of isolated incident of harm, and it found that the persistence and severity of the discriminatory acts suffered by the applicant constituted persecution. The construction of the requirement of ‘persistency’ as a ‘universal’ or simply a ‘usual’ feature of ‘persecution’ was explicitly considered in the UK by the Immigration Appeal Tribunal. The Tribunal argued that at least as far as certain basic human rights are concerned (for example, absolute rights protected in the International Covenant on Civil and Political Rights), the requirement of ‘persistency’ runs counter to the logic of Hathaway’s analysis of persecution by reference 28

Decision of the Immigration Appeal Tribunal, 4 Dec. 1998 [1999] Imm AR 121; judgment of the Court of Appeal, 2 Dec. 1999 [2000] Imm AR 205; judgment of the House of Lords, 6 Jul. 2000 [2000] 3 WLR 379. 29 In R v. Immigration Appeal Tribunal and Secretary of State for the Home Department, ex parte Syeda Khatoon Shah, Sedley J. (now Sedley L.J.) observed that ‘in the area of asylum law . . . the court ought not in my view to be difficult or rigid’, [1997] Imm AR at 148. And a few pages later, he added ‘[u]nless it is seen as a living thing, adopted by civilised countries for a humanitarian end which is constant in motive but mutable in form, the Convention will eventually become an anachronism’ (at 152). In Adan v. Secretary of State for the Home Department, Lord Lloyd of Berwick noted that ‘one is more likely to arrive at the true construction of article 1A(2) by seeking a meaning which makes sense in the light of the Convention as a whole, and the purposes which the framers of the Convention were seeking to achieve, rather than by concentrating exclusively on the language. A broad approach is what is needed, rather than a narrow linguistic approach’, [1999] 1 AC at 305; for text of judgment see below, 202–29. See also, Lord Clyde’s view in Horvath v. Secretary of State for the Home Department emphasising the importance of the ‘broad intent of the Convention’ and of its ‘essential purpose’ when constructing article 1A(2), [2000] 3 WLR 395G-H. 30 Per Lord Lloyd of Berwick, Horvath v. Secretary of State for the Home Department, [2000] 3 WLR 391A. 31 Hathaway defines persecution as ‘the sustained or systemic violation of basic human rights demonstrative of a failure of state protection’, in Law of Refugee Status, above n. 10, 104–5.


23

to a hierarchy of rights, as well as common sense; a single incident affecting an individual’s absolute right should suffice. It reached the convincing conclusion that, in view of the survey of the jurisprudence, ‘persistency is a usual but not a universal criterion of persecution’.32 The British courts also accept that persecution may not only be at the hands of State’s agents but may also be acts committed by non-State’s actors where the government is unable or unwilling to control.33 Here the views of the British courts are consistent with international legal treaty bodies, in particular the European Court of Human Rights34 and the Human Rights Committee,35 which do not consider the source of the ill-treatment to be relevant in determining the nature of the ill-treatment under article 3 of the 1950 European Convention on Human Rights and article 7 of the 1966 International Covenant on Civil and Political Rights, respectively. As for the UN Committee Against Torture, in spite of the restrictive wording of article 1(1) of the 1984 Convention Against Torture,36 it recognised that members of certain factions in Mogadishu could be considered as acting in an official capacity where those factions exercised certain prerogatives that were comparable to those normally exercised by legitimate governments.37 4.1 Persecution and the failure of State protection Traditionally, the position of the Court of Appeal has been that persecution should be given its ordinary dictionary meaning (that is, ‘to pursue with malignancy or injurious action especially to oppress for holding a heretical belief’) and should not therefore include consideration of absence or failure of State protection.38 However, in its 1999 judgment in Horvath v. Secretary of State for the Home Department, the Court of Appeal decided (by a majority of two against one) that persecution by non-State actors 32

Mustafa Doymus v. Secretary of State for the Home Department, Immigration Appeal Tribunal, Appeal No.HX/80112/99, 19 Jul. 2000, para. 42 (not yet published). Note also that the universality of the criterion of ‘persistency’ has been rejected explicitly by the UNHCR (Handbook, paras. 51 and 53) and by the European Union (EU joint position, para.4), and that it has not been adopted by most scholars, including Goodwin-Gill (Refugee, above n. 16, 69) and Anker (Law of Asylum, above n. 8, 209–11). 33 Islam v. Secretary of State for the Home Department, R v. Immigration Appeal Tribunal and Another, ex parte Shah [1999] 2 WLR 1015; Adan v. Secretary of State for the Home Department [1999] 1 AC 293; Horvath v. Secretary of State for the Home Department [2000] 3 WLR 379. 34 It does however require that in cases of ill-treatment emanating from non-state actors, lack of state protection be proven (H.L.R. v. France, case 11/1996/630/813, judgment of 29 Apr. 1997). 35 The Human Rights Committee nevertheless requires that the conduct be imputable to the state (Johnson v. Jamaica, Communication No.588/1994), an element no longer required by the European Court of Human Rights (H.L.R. v. France, above n. 34, and D. v. United Kingdom, case 146/ 1996/767/964, judgment of 2 May 1997). 36 Article 1(1) CAT84: ‘the term “torture” means any act . . . when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’. 37 Elmi v. Australia, views of 25 May 1999. 38 R v. Immigration Appeal Tribunal, ex parte Jonah [1985] Imm AR at 13.

24

He´le`ne Lambert

required both serious harm and failure of State protection.39 This decision was confirmed by the House of Lords on 6 July 2000, with only one dissenting opinion by Lord Lloyd of Berwick. Of their four Lordships composing the majority (that is, Lord Hope of Craighead, Lord Clyde, Lord Browne-Wilkinson and Lord Hobhouse of Woodborough), only Lord Hope of Craighead and Lord Clyde offered reasons for their decisions; Lord Browne-Wilkinson agreed with both Lord Hope of Craighead and Lord Clyde,40 while Lord Hobhouse of Woodborough only agreed with Lord Hope of Craighead. 4.2 The holistic view of the majority at the House of Lords Both Lord Hope of Craighead and Lord Clyde agreed that the language of article 1A(2), and therefore the word ‘persecution’, should be construed in the light of the general purpose of the Refugee Convention (article 31, Vienna Convention 1969). Both also agreed that ‘the general purpose of the Convention is surely to afford protection and fair treatment to those for whom neither is available in their own country’ (as per Lord Keith of Kinkel in R v. Secretary of State for the Home Department, ex parte Sivakumaran).41 Thus, the general purpose of the Convention is to allow for alternative protection when protection is no longer available at national level. The failure of State protection is therefore central to the whole Convention system. More specifically, Lord Hope of Craighead based his analysis on the distinction made by Lord Lloyd of Berwick in the case of Adan between the ‘fear’ and the ‘protection’ tests when applying article 1A(2). However, he recognised ‘that the two tests are nevertheless linked to each other by the . . . surrogacy principle’, and found it perfectly acceptable that ‘each test is founded upon the same principle’.42 He thus reached the conclusion that in cases of persecution by the State (or State agents), surrogate protection is obviously necessitated. But in cases of persecution by nonState actors, ‘the failure of the State to provide the protection is nevertheless an essential element. It provides the bridge between’ the two case-scenarios.43 His argument relied extensively on international law, including academic writing, the UNHCR Handbook, and court decisions. Thus, in order to satisfy the ‘fear’ test, an applicant must be able to show that ‘the persecution which he fears consists of acts of violence or illtreatment against which the State is unable or unwilling to provide protection’.44 In the case of Mr Horvath, although the discriminatory 39

[2000] Imm AR 205. This is not a very helpful position because the reasoning of Lord Hope of Craighead differs slightly from that of Lord Clyde, though without affecting the ratio decidendi. 41 [2000] 3 WLR 383C, 396D-F. 42 Ibid., 385E-F. 43 Ibid., 385G-H. 44 Ibid., 387F-G. 40


25

acts reached the threshold of severity and persistence required by the Refugee Convention, Slovakia was found to provide sufficient protection to Roma. As a result Mr Horvath could not fear ‘persecution’ within the meaning of article 1A(2). It is nevertheless unclear whether Lord Hope of Craighead would limit his assessment of the level of State protection to the determination of ‘persecution’ or whether he would extend such assessment to a determination of the well-foundedness of the fear. It may be suggested that the former seems to be intended from his conclusion: ‘At that stage [the stage of whether what he fears is ‘persecution’] the question whether the State is able and willing to afford protection is put directly in issue by a holistic approach . . .’ (emphasis added).45 Lord Clyde, on the other hand, approached the question raised by the core issue of the case in slightly different terms. He also recognised that the definition of a refugee in article 1A(2) contains two parts. Under the ‘first part’, the applicant must satisfy the competent authority of ‘the reason why he is outside the country of his nationality’.46 Under the ‘second part’, he must show that there is no possibility for him to return to his home State, in order to be successful in his application.47 However, Lord Clyde then considered that in order to determine the wellfoundedness of a fear (of being persecuted), the availability or lack of State protection was a necessary ingredient. Thus, the level of State protection was necessary to a determination of the ‘real risk’ of persecution. But was it relevant to a determination of ‘persecution’? Like Lord Hope of Craighead, he regarded the principle of surrogacy as the key to the construction of the definition. He thus recognised that in cases of persecution by the State (or State agents), the ordinary dictionary meaning of ‘persecution’ was sufficient since ‘active persecution’ is simply the reverse of protection.48 However, in cases of persecution by non-State actors, the principle of surrogacy underlying the whole system of the Refugee Convention provided that alternative protection should only be made available when the level of home State protection is insufficient. To support his argument he relied on similar sources to those used by Lord Hope of Craighead, and then explained that consideration of State protection could not be limited to a determination of the well-foundedness of the fear because to do so would create anomalies, for example, ‘asylum would be granted even although there was . . . a reasonable level of protection’ but also because certain acts feared may still occur even if the State has taken steps to protect the victims of such acts.49 And thus, like Lord Hope of Craighead, Lord Clyde considered the level of protection 45 46 47 48 49

Ibid., Ibid., Ibid., Ibid., Ibid.,

388H. 399A. 399B. 401F-G. 403D-H.

26

He´le`ne Lambert

by the home State to be relevant to a determination of ‘persecution’. But unlike Lord Hope of Craighead, it would seem, he also explicitly recognised this element to be relevant to a determination of the existence of a real risk, namely, the well-foundedness of the fear. 4.3 The dissenting view The view of Lord Lloyd of Berwick contrasted sharply with that of the majority. Lord Lloyd of Berwick indeed regarded persecution and failure (or absence) of State protection as two separate issues. He referred back to his analysis in the Adan case,50 particularly to the distinction between the ‘fear’ test and the ‘protection’ test comprised in article 1A(2). From his analysis, he deduced that persecution can be at the hands of State agents as well as non-State agents and that ‘persecution’ refers to more than threats to life or freedom. He did not however recognise that ‘persecution’ refers to elements of protection (for example, the failure or absence of State protection and the principle of surrogacy) on the ground that ‘persecution’ must be accorded an ordinary dictionary meaning. Thus, according to Lord Lloyd of Berwick: ‘It is the severity and persistence of the means adopted . . . which turns discrimination into persecution; not the absence of State protection’.51 He added that if such link were to exist, it would have been provided by the drafters of the Convention. Since they did not do so, it is not for the House ‘to create a link between the activities of the thugs and discrimination by the State, so as to extend the scope of the Convention by judicial interpretation, any more than we should limit the meaning of persecution by introducing into the definition of persecution the concept of State protection’ (emphasis in original).52 Lord Lloyd of Berwick’s construction of the word ‘persecution’ rested on a plain reading of the language of an international treaty. This literal textual approach disregarded the general principle that the Refugee Convention is a living instrument that must be interpreted by the judiciary in the light of its object and purpose, including human rights protection.53 Lord Lloyd of Berwick found the failure of State protection relevant to the definition only so far as the ‘protection’ test is concerned, not the ‘fear’ test, principally because ‘persecution’ should be given an ordinary meaning. 4.4 The standard of State protection The majority at the Court of Appeal and the House of Lords decided that the standard of protection guaranteed by the home State, Slovakia, 50 51 52 53

House of Lords [1999] 1 AC 293. [2000] 3 WLR 391E-F. Ibid., 393D-E. Steinbock, D. J., ‘The refugee definition as law’, above n. 9, 19–20 and 29–33.


27

was fundamental to a determination of persecution. This conclusion thus led to an enquiry into the sufficiency of national protection. The Immigration Appeal Tribunal, the Court of Appeal and the House of Lords all agreed that the level of protection provided by the State (Slovakia) to the appellant (Mr Horvath) was sufficient. As a result, Mr Horvath was not entitled to refugee status because he had failed to show that his home State was unwilling (or unable) to afford protection against the attacks by skinheads. The sufficiency of State protection in cases where the agent of persecution is not a State agent may be measured against two standards. Firstly, it can be measured against the standard that there exists in the country ‘a system of criminal law which makes violent attacks by the persecutors punishable and a reasonable willingness to enforce that law’ on the part of the State. Secondly, it can be measured against the standard that ‘the protection by the State be such that it cannot be said that the person has a well-founded fear’.54 The majority at the House of Lords opted for the former. In particular, it recognised that ‘effective’ or ‘sufficient’ protection did not require absolute guaranteed immunity; all that was required was ‘a reasonable willingness by . . . the police and courts to detect, prosecute, and punish offenders’.55 Thus, the State is expected to provide a system of protection for the basic human rights of its nationals.56 But is it expected to act so as positively to prevent any reasonable chance of other people violating those rights? The Immigration Appeal Tribunal found that it should in, for instance, Yousfi v. Secretary of State for the Home Department.57 This view was rejected in Horvath v. Secretary of State for the Home Department. In particular, it was agreed at the Court of Appeal that the law enforcement authorities could be inefficient or incompetent (although not on an extreme and widespread scale as this would amount to a breakdown of law and order and in the State inability to afford protection), so long as they were not reasonably unwilling.58 This led Stuart-Smith L.J. to consider the existence of ‘a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes’ as crucial.59 It was also 54 As per Lord Hope of Craighead, Horvath v. Secretary of State for the Home Department [2000] 3 WLR 382G. 55 As per Stuart-Smith, Horvath v. Secretary of State for the Home Department, C.A., [2000] Imm AR 215, quoted by Lord Clyde in the House of Lords [2000] 3 WLR 398D-E. 56 The Supreme Court of Canada applies a similar test based on ‘the de facto viability of effective recourse to national authorities’: is there in place a fair and independent judicial process? See, Hathaway, Law of Refugee Status, above n. 10, 133. 57 [1998] INLR at 198: ‘The real question is not whether the State authorities are doing the best they can in all the circumstances, but whether viewed objectively the domestic protection offered by or available from the State to the appellant is or is not reasonably likely to prevent persecution from, in this case . . .’ 58 As per Hale L.J., Horvath v. Secretary of State for the Home Department, C.A., [2000] Imm AR 247. 59 [2000] Imm AR 215. Quoted by Lord Clyde, House of Lords Judgment, [2000] 3 WLR 398E.

28

He´le`ne Lambert

agreed that the level of protection was to be assessed in the light of the present and future situation. Furthermore, in the case of a democracy, where by definition a State is able to afford protection, it was found that powerful evidence would be needed to show that the State is unwilling to protect its nationals.60 This approach was confirmed by the House of Lords.61 Lord Clyde, in particular, stated that ‘[t]here must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actions contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of circumstances of each particular case’.62 Thus, the majority at the House of Lords rejected the standard put forward by the Refugee Legal Centre that ‘protection should be such as to reduce the risk to the applicant that his fear of persecution could not be said to be well-founded’.63 In the words of Lord Hope of Craighead, ‘The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home State. Rather it is a practical standard, which takes proper account of the duty which the State owes to all its own nationals’.64 And to quote Lord Clyde, ‘The sufficiency of protection is not measured by the existence of a real risk of an abuse of rights but by the availability of a system of protection of the citizen and a reasonable willingness by the State to operate it’.65 One can conclude from this that the position of British courts is that an individual can be returned to his/her country of origin notwithstanding the fact that s/he has a well-founded fear of persecution on a Convention ground simply because the State did its best to operate the system of protection for the basic human rights of its nationals. Surely, this cannot be right in the light of article 33(1) of the Refugee Convention which prohibits the expulsion or return of a refugee in any manner whatsoever to a country where his/her life or freedom would be threatened for a Convention reason. Furthermore, it is a well-established principle of international law that States may not invoke their own domestic laws in order to evade their international obligations. In addition, ‘there is a general duty to bring internal law into conformity with obligations under international law’.66 This point was highlighted by the Refugee Status Appeals Authority at Auckland, New Zealand, which 60 As per Stuart-Smith L.J., referring to the statement made by the Immigration Appeal Tribunal, [2000] Imm AR 220. 61 [2000] 3 WLR 388D-F (Lord Hope of Craighead) and 403E-F (Lord Clyde). 62 [2000] 3 WLR 398B-D. 63 As per Lord Clyde, [2000] 3 WLR 400E. 64 [2000] 3 WLR 388E-F. 65 Ibid., 403E-F. 66 Brownlie, I., Principles of Public International Law, 5th edn., 1998, 35.


29

stated that ‘[t]his obligation [deriving from article 33(1)] cannot be avoided by a process of interpretation which measures the sufficiency of State protection not against the absence of a real risk of persecution, but against the availability of a system for the protection of the citizen and a reasonable willingness by the State to operate that system’.67 As a result, the New Zealand Refugee Status Appeals Authority decided not to follow the approach of the House of Lords in Horvath on this issue. In the view of the Appeals Authority, ‘the proper approach to the question of State protection is to inquire whether the protection available from the State will reduce the risk of serious harm to below the level of well-foundedness, or, as it is understood in New Zealand, to below the level of a real chance of serious harm. The duty of State is not, however, to eliminate all risk of harm’ (emphasis in original).68 This approach seems to offer a more sensible test of the standard of State protection than the one applied by the House of Lords. This is also the approach adopted by the European Court of Human Rights, as illustrated by the case of Osman v. United Kingdom.69 Like the New Zealand Refugee Status Appeals Authority, the European Court of Human Rights focuses on the risk and the elimination of that risk. It views the duty of State protection in terms of negative obligation (namely, the obligation to refrain from acts contrary to the European Convention on Human Rights) and positive obligation (namely, the obligation to act in order to safeguard the rights of those within its jurisdiction). According to the Court, the latter also implies ‘a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual’,70 albeit in a reasonable way, that is, ‘in a way which does not impose an impossible or disproportionate burden on the authorities’.71 This led the Court to conclude that when faced with an alleged violation of a positive obligation, ‘it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge’ (my emphasis).72

5. Conclusion The precedential value of the landmark judgment by the House of Lords in the case of Horvath v. Secretary of State for the Home Department is not to be 67

Refugee Appeal No.71427/99, decision of 16 Aug. 2000, para. 63. Ibid., para. 66. 69 Case No.87/1997/871/1083, 28 Oct. 1998. 70 Ibid., para.115. 71 Ibid., para.116. Lord Clyde explicitly referred to this particular part of the judgment in Osman v. United Kingdom (that is, no one is entitled to an absolutely guaranteed immunity) but he fell short of noting the test applied by the European Court of Human Rights, [2000] 3 WLR 398A-C. 72 Ibid., para. 116. 68

30

He´le`ne Lambert

underestimated. Their Lordships regarded the case as raising important and complex enough issues to warrant reserved judgment, thereby allowing additional time to reach their decision.73 The answer of the House of Lords to the uncertainty of the meaning of the word ‘persecution’ is to be welcomed for at least two reasons. One, it embraces the principles of interpretation developed in international law, in particular, international human rights law, namely, flexibility, serious harm and failure of State protection, the source of the harm is irrelevant. Two, it settles the law in this area of constant policy and legislative change. The judgment of the House of Lords in Horvath is the first to address the linkage between serious harm and the failure of State protection within the word ‘persecution’.74 It is now settled law in the United Kingdom that the language of the Refugee Convention must be construed in the light of its object and purpose. The ‘true interpretation’ of ‘persecution’ must therefore be grounded in a human rights context by reference to the principle of surrogacy of protection. It follows that ‘persecution’ means the failure (or absence) of State protection against a serious harm, including persistent discriminatory acts. However, the judgment of House of the Lords also contains weaknesses. Firstly, whereas the decision reached by the House of Lords in this case may be correct on the facts, its reasoning appears to be too restrictive. This is because it deliberately chose not to refer to the risk of serious harm and the well-foundedness of the fear when assessing the standard of State protection. Yet these considerations form the test applied by the European Court of Human Rights. The House of Lords’ position therefore opens the possibility of further challenge to the European Court of Human Rights. Secondly, it endorsed, albeit obiter, the meaning of persecution as the failure of State protection against a serious and persistent harm. As recently demonstrated by the Immigration Appeal Tribunal, the general view is that this should be understood to mean serious or persistent harm.75 Obviously the doctrine of precedent in English law gives tremendous influence to this ruling in the British courts. This impact should soon also reach the rest of the European Union in view of point VI of the

73

From 18 May 2000, the original date for the judgment, until 6 July 2000. Arguably, the decision of the Supreme Court of Canada in Canada (Attorney-General) v. Ward [1993] 2 SCR 689–755, discussed this issue first but it supported the interpretation that a ‘wellfounded fear of being persecuted’ (and not persecution per se) included the actions of third parties where the state is unable or unwilling to protect the applicant. Moreover, it was decided in the context of s. 2(1) of the Canadian Immigration Act 1976, a significantly different provision from article 1A(2) of the Refugee Convention. 75 Mustafa Doymus v. Secretary of State for the Home Department, Appeal No.HX/80112/99, 19 Jul. 2000. 74


31

Conclusions reached by the European Council in Tampere recognising the principle of mutual recognition of judicial decisions and judgments and the necessary approximation of legislation in both civil and criminal matters within the European Union.76

76 European Community Tampere European Council Presidency Conclusions 15 and 16 Oct. 1999, 11 IJRL 745 (1999).