Debrah v. Secretary of State for the Home Department

DEBRAH v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal
His Honour Judge D. S. Pearl (President), Lady Bonham-Carter JP and Mrs M. L. Roe
1 July 1998

Asylum - Extent of State's duty to protect citizens against persecution Sufficiency of protection provided by States - Relevance of State's willingness to provide protection and effectiveness of such protection - Persecution perpetrated by police officers - United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee status, para 65

The appellant, a national of Ghana, had applied for asylum on the grounds of a well-founded fear of persecution arising out of his political activities. His application was refused by the Secretary of State and his subsequent appeal to a special adjudicator dismissed. Leave to appeal was refused by the Immigration Appeal Tribunal, but that decision was quashed by order of the High Court. The Tribunal subsequently granted leave to appeal. Before the Tribunal the parties agreed that the sole issue in the appeal was ‘the appropriate test to be applied in a case where the acts of persecution were perpetrated by police officers'.

Held - dismissing the appeal -

(1)In determining whether a person has a ‘well-founded fear of persecution' within the terms of the United Nations Convention relating to the status of Refugees 1951 and 1967 Protocol, a decision-marker had to ascertain whether the system of domestic protection which was in place in the country of feared persecution provided a sufficiency of protection. A more objective test could result in the decision-maker ignoring the risk of persecution in relation to the particular asylum-seeker under consideration and a more subjective test could result in the overriding reality of a failure to protect the asylum-seeker being ignored.

Yousfi v Secretary of State for the home Department (United Nations High Commissioner for Refugee Intervening), Lounadi and Dahmane doubted. Jaworski approved.

(2)Whilst it could not, on examination of the evidence relating to the human rights practices in Ghama, be guaranteed that the appellant would not be persecuted on his return, there was nevertheless a sufficiency of protection which would enable the appellant to return safely and seek domestic protection in the event of any difficulty he experienced as a result of his political activities.

Cases referred to in judgment
Dahmane (17219) (unreported), IAT
Jaworski (17152) (unreported) IAT
Lounadi (15521) (unreported), IAT
Yousfi v Secretary of State for the Home Department (United Nations High Commissioner for Refugees Intervening) [1998] INLR 136, IAT

Mr R. Mckee (Immigration Advisory Service) for the appellant
Mr A. Mole (Home Office presenting officer) for the Secretary of State

HHJ PEARL (PRESIDENT): The appellant is a citizen of Ghana who appeals against the determination of a special adjudicator, Mr J.L. Weinberg who dismissed his appeal against the refusal of leave to enter. The appellant claimed asylum. Leave to appeal was initially refused, but this determination was quashed by order of the High Court on 9 December 1997. In consequence, leave was granted.

At the hearing before us, Mr A. mole represented the Secretary of State and Mr R. McKee of the IAS appeared on behalf of the appellant. It was common ground that the sole issue was the appropriate test to be applied in a case where the acts of persecution were perpetrated by police officers. The letter from the Treasury Solicitor identifying the reasons for the court order said that the judge was not satisfied that the special adjudicator had applied the correct test. She had said:

‘That the police treat badly anyone they arrest or detain, be it for 1½ hours is not something which can be justified and is an abuse of power which should not occur, however it does not appear to me that isolated cases of police using excessive force can be considered as persecution because they are not knowingly tolerated by the authorities. Ghana, in the US Department of State report, is referred to as a country which continues to be in transition from a single party of varied authoritarian system to a constitutional democracy. The police are under jurisdiction of an eight-member police council and they are responsible for maintaining law and order. I do not find in this case that the actions of the police could be considered persecution within the meaning of the Convention, in that they were knowingly tolerated by the Rawlings government,'

The Tribunal case-law in this area has been the subject of some inconsistency and it is perhaps appropriate that the matter be re-examined. Mr Mckee relied on the determination in Yousfi v Secretary of State for the Home Department (United Nations High Commissioner for Refugees Intervening) [1998] INLR 136 with his Honour Judge E. Cotran sitting as chairman. In that case, the Tribunal said as follows (at 138 G-H):

‘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… or as para 65 [of the UNHCR Handbook] puts it: are the Algerian authorities able to provide effective protection against the GIA?'

In another Algerian case, Lounadi (15521) the test was put in a very different way indeed by a differently constituted Tribunal, with Mr M. W. Rapinet, one of the Vice-Presidents, sitting as chairman. He said:

‘On the basis of the documents which we have perused with care it is very clear that the policy of the government in Algeria is to offer protection to all its citizens against violence perpetrated by the extreme fundamentalist groups. Clearly it would be unreasonable to expect individual police protection for each individual citizen of the country. The evidence before us is that the government takes every step available to it, and some of those steps may well be condemned by the international community, to deter and bring to book those responsible for perpetrating terrorism in the country. Clearly it does not meet with total success… the test must surely be willingness and the ability of the government to offer protection and the evidence before us indicates that the government is certainly willing and it providing increasing resources in order to protects its citizens…'

Whereas Yousfi (Judge Cotran) emphasises the effectiveness of the protection, Lounadi (Mr Rapinet) concentrates on the willingness of the government to provide the protection. Yousfi can be seen as a determination which highlights the objective evidence; Lounadi in contrast puts more weight on the subjective approach.

There is one other Algerian case, Dahmane (17219) with Mr Fox sitting as chairman, where the Tribunal in that case ‘prefers the findings of the Tribunal in Lounadi'.

In some ways neither test is in our view free from difficulty. An undue emphasis on the objective evidence may mean that the decision-maker ignores the central issue which exists in all asylum status determinations, namely the risk of harm amounting to persecution. The risk involves some analysis of the attempts being made by the State to provide its citizens with judicial and other guarantees, but in that context the major concentration of the analysis must be on the particular circumstances of that asylum-seeker whose case is being considered. In contrast an undue emphasis on the subjective element of the willingness to provide protection means that the overriding reality of failure in that regard is often ignored.

It is for this reason, that the Tribunal in Jaworski (17152) (a Polish Roma case; with two of the current members of the Tribunal, namely Mrs Roe and the President being members of that Tribunal) set out what it considered to be the correct test: is there in place in the country a sufficiency of protection?

One needs to inquire into the various steps which have been taken by the country to see whether this protection is in place. If this sufficiency of protection is in place, then the need for international protection is not required. Thus, it is not the test simply to ask whether the country ‘knowingly tolerates' persecutory acts by its agents or by sections of the community. Neither is it the test to ask whether the protection is effective for one thing, it is almost impossible in our view to quantify ‘effectiveness'.

Mr McKee conceded that the Yousfi test was different, but he urged on us the point that it was not so far from it. We think that the Yousfi test, by concentrating on the effectiveness of the protection, places the decision-maker in an impossible position. We think that it is impossible to create a system of international protection based on effectiveness. In contrast we believe that it is indeed the responsibility of the decision-maker to ascertain whether the systems of domestic protection which are in place are sufficient from the perspective of international law.

We turn therefore to the situation in the present case. Both Mr McKee and Mr Mole referred us to the latest 1998 US State Department Report. Mr Mole said that there remained some problems with examples of individual abuse by police officers, but there is no suggestion that the police habitually disrupt political activities. He noticed that there was no longer a necessity even for permits prior to the holding of a political meeting. He said that the evidence from the State Department Report was that the government attempted to redress the problems which may be cause by any example of over-zealous police operations. He said there were constitutional rights, there was in existence a Commission for Human Rights (CHRAJ), and the civil courts provided protection from unlawful imprisonment and wrongful arrest. The appellant, in Mr Mole's submission, is a low profile individual who once worked for a party which now controls one-third of the seats in the Ghananian parliament. He would be returning to Ghana after free and fair elections, and he had totally failed on the lower standard to demonstrate to us that it was reasonably likely that he had a well-founded fear of persecution.

Mr McKee acknowledged that the ‘sufficiency' test was the correct one to adopt. He said it was a matter of degree, and although he accepted that the latest US State Department report documented a slight improvement in the human rights record, he felt that the evidence illustrated that little had been done to prevent police excesses. He submitted that a little-known person (such as the present appellant) was in fact in a worse position than a man with a higher profile who would be likely to attract media attention. In effect, he said that the position in Ghana had not sufficiently improved to remove the risk of persecution.

We have looked carefully at the documentary evidence before us. The 1998 US State Department report makes the important point that ‘the presence of a significant number of opposition parliamentarians since January [1997] has led to increased scrutiny of the government's activities'. Ghana has an independent judiciary; it has a Commission for Human Rights and Administrative Justice (CHRAJ); it has an independent press which in 1997 ‘continued its vigorous and outspoken criticism'. The CHRAJ has recommended improvements in the administration of the criminal justice system, and there is some indication that the government through the Attorney-General is responding to these criticisms,

That there are abuses in Ghana is undeniable. This is true, sadly, to some degree in every country in the world, and it would be a totally prejudiced person who argued that these abuses did not occur in the civilised and democratic Western world, including our own country. Abuses do occur, and to that extent no guarantee can every be given to anybody, whether a low profile former political ‘bag-carrier', or a high profile activist. But whilst our examination of the documents on Ghana in this case lead us to the conclusion that we cannot guarantee that this person will not be persecuted, we are able to say that there is in place in Ghana a sufficiency of protection which will enable him to return safely to Ghana and which will enable him to seek domestic protection in the event of any difficulty he experiences as a result of his former or any new political activity. We adopt Mr Mole's submissions.

Accordingly, we dismiss the appeal.

Appeal dismissed.