- Bookmark
- Share
- CaseIQ
Bagdanavicius & Anor, R (on the application of) v
Anonymized Case Summary
Factual and Procedural Background
The Appellants are a married couple from Lithuania, the husband being of Roma origin and the wife non-Roma. They experienced persistent violence and harassment in their home country at the hands of the wife’s brother and his associates because of the inter-ethnic marriage. Fearing further harm, they travelled to the United Kingdom with their three-year-old child on 7 December 2002 and claimed asylum. The Respondent (the Secretary of State) refused the claim and certified it as “clearly unfounded” under the Nationality, Immigration and Asylum Act 2002. Judicial review was dismissed by Judge Kay, and the Court of Appeal upheld the Respondent’s decision. The present appeal to the House of Lords therefore concerns only whether removal would breach Article 3 of the European Convention on Human Rights (“ECHR”).
Legal Issues Presented
- Whether an individual resisting removal must prove both (a) a real risk of serious harm from non-state actors in the receiving country and (b) that the receiving state will fail to provide a reasonable level of protection, in order to engage Article 3 of the ECHR.
Arguments of the Parties
Appellants’ Arguments
- Article 3 imposes an absolute, negative obligation on the expelling state; therefore removal is prohibited whenever there is a real risk of serious harm, irrespective of the adequacy of protection in the receiving country.
- Paragraph 91 of Soering v United Kingdom demonstrates that liability attaches to the expelling state without any need to establish that the receiving state would itself (actually or notionally) breach Article 3.
Respondent’s Arguments
- In cases involving non-state actors, Article 3 is engaged only if the applicant also shows that the receiving state is unable or unwilling to provide a reasonable level of protection.
- Alternatively, the sufficiency of state protection forms part of the overall “real risk” assessment; where adequate protection exists, the Article 3 threshold is not crossed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R (Ullah) v Special Adjudicator [2004] 2 AC 323 | Differentiated “domestic” and “foreign” Article 3 cases. | Provided terminology for analysing extraterritorial application of Article 3. |
| Soering v United Kingdom (1989) 11 EHRR 439 | Established that removal is prohibited where substantial grounds show a real risk of Article 3 ill-treatment. | Formed the core principle (the “Soering principle”) applied throughout the judgment. |
| HLR v France (1997) 26 EHRR 29 | Article 3 applies to non-state actor risk if the receiving state cannot provide appropriate protection. | Illustrated the necessity of showing both risk and insufficiency of protection. |
| Ammani v Sweden App No 60959/00 (2002) | Reaffirmed the HLR approach. | Cited as consistent authority for the two-limb test. |
| D v United Kingdom (1997) 24 EHRR 423 | Exceptional medical removal case. | Distinguished as unique and not controlling in ordinary non-state-actor violence cases. |
| Ahmed v Austria (1996) 24 EHRR 278 | Removal unlawful where civil war created danger and no state protection. | Demonstrated that absence of protection is pivotal. |
| Cruz Varas v Sweden (1991) 14 EHRR 1 | Restated the Soering principle. | Used to confirm the modern formulation of the test. |
| Vilvarajah v United Kingdom (1991) 14 EHRR 248 | Further confirmation of the Soering principle. | Provided additional Strasbourg support. |
| Chahal v United Kingdom (1996) 23 EHRR 413 | Emphasised the absolute nature of Article 3. | Cited as background authority. |
| Tomic v United Kingdom App No 17837/03 (2003) | Recent repetition of Soering wording. | Showed continuing consistency in Strasbourg jurisprudence. |
| Ammari v Sweden (2002) | Identical restatement of the Soering formula. | Reinforced the prevailing test. |
| Nasimi v Sweden App No 38865/02 (2004) | Further repetition of the same principle. | Confirmed the settled law. |
| Osman v United Kingdom (1998) 29 EHRR 245 | Positive obligation to protect is not absolute; must not impose an impossible or disproportionate burden. | Used to contrast the absolute negative obligation on expulsion with the qualified positive duty of protection. |
| McPherson v Secretary of State for the Home Department [2002] INLR 139 | Clarified that “obviate” in HLR means taking reasonable precautions, not guaranteeing safety. | Supported the view that protection need only be reasonable, not perfect. |
| N (FC) v Secretary of State for the Home Department [2005] UKHL 31 | Narrowed the exceptional scope of D v UK. | Showed why the medical-exception reasoning could not aid the Appellants. |
| Horvath v Secretary of State for the Home Department [2001] 1 AC 489 | Under the Refugee Convention, an applicant must show both persecution risk and insufficient state protection. | Demonstrated the parallel approach between the Refugee Convention and Article 3. |
| Svazas v Secretary of State for the Home Department [2002] 1 WLR 1891 | Addressed non-conforming behaviour by official agents in asylum claims. | Mentioned as a potential analogy for future Article 3 claims involving state agents. |
Court’s Reasoning and Analysis
The panel, led by Judge Brown, confirmed that Article 3 focuses on protection against “proscribed ill-treatment.” In non-state-actor situations, harm amounts to such ill-treatment only if the receiving state fails in its positive duty to provide reasonable protection. Violence by private individuals, however severe, does not in itself constitute torture or inhuman treatment under Article 3 unless coupled with state failure.
The Court rejected the Appellants’ interpretation of paragraph 91 of Soering. That passage simply relieves courts from determining the liability of the receiving state; it does not dispense with the requirement that the feared harm, if realised, would constitute an Article 3 violation. Consequently, the Court held that the applicant must establish both a real risk of serious harm and an insufficiency of state protection.
Applying this test, the Court accepted the Respondent’s concession that the Appellants face a real risk of violence if returned, but also accepted the Appellants’ concession that Lithuania provides a reasonable level of protection. Because the second limb was not satisfied, Article 3 was not engaged.
The Court distinguished D v UK as a rare medical-needs case and noted the parallel reasoning under the Refugee Convention (Horvath). It further observed that the Appellants’ subsequent EU free-movement rights were irrelevant to the Article 3 analysis.
Holding and Implications
APPEAL DISMISSED.
The House of Lords clarified that, in removal cases involving threats from non-state actors, an applicant must prove both (1) a real risk of serious harm and (2) the receiving state’s inability or unwillingness to provide reasonable protection. Because adequate protection was conceded in this case, removal would not breach Article 3. The decision aligns Article 3 analysis with asylum jurisprudence and signals that, in most cases, an Article 3 claim will not succeed where an asylum claim on the same facts has failed. No new precedent was created, but the judgment provides authoritative guidance on the application of the “Soering principle” to non-state-actor scenarios.
Alert