Bagdanavicius and Another, Regina (on the Application of) v: HL 26 May 2005

The claimants said they had been subjected to harassment and violence from non-state agents in their home country of Lithuania, and sought asylum.
Held: It was for the person claiming the protection of the Convention provisions for ill-treatment to show that the country would not provide them with adequate protection against non-state agents. It was implicit in the provisions that there might remain a real risk of harm through the state provided a reasonable level of protection. All that was said in Soering was that the court was not to be asked to decide whether a state not before the court would be in breach of article three. It was for the person seeking to avoid being expelled, to show substantial grounds for believing that he would face a real risk of being subject to treatment contrary to article 3. In any event though the appeal was dismissed, Lithuania having beocme part of the EU, the appellants had freedom of movement within the EU, and had now found work.
Lord Brown of Eaton-under-Heywood observed that it has long been established that article 3 of the Convention imposes an obligation on the part of a contracting state not to expel someone from its territory where substantial grounds are shown for believing that he will face in the receiving country a real risk of being subjected to treatment contrary to that article. He cited Soering v United Kingdom (1989) 11 EHRR 439 as the initial authority for the principle that the act of expulsion in such a circumstance constitutes the proscribed ill-treatment. The expulsion itself breaches article 3 if such risk in the receiving country emanates either from acts of the public authorities of that state or from persons or groups of persons who are not public officials. In the latter circumstance, it is not sufficient to show that there is a real risk of suffering serious harm at the hands of non-state agents.
He deprecated a failure in such cases to distinguish between the risk of serious harm on the one hand and the risk of treatment contrary to article 3 on the other: ‘In cases where the risk ’emanates from intentionally inflicted acts of the public authorities in the receiving country’ (the language of D v United Kingdom (1997) 24 EHRR 423, 447, para 49) one can use those terms interchangeably: the intentionally inflicted acts would without more constitute the proscribed treatment. Where, however, the risk emanates from non-state bodies, that is not so: any harm inflicted by non-state agents will not constitute article 3 ill-treatment unless in addition the state has failed to provide reasonable protection . . Non-state agents do not subject people to torture or to the other proscribed forms of ill-treatment, however violently they treat them: what, however, would transform such violent treatment into article 3 ill-treatment would be the state’s failure to provide reasonable protection against it.’

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
[2005] UKHL 38, Times 30-May-2005, [2005] 2 WLR 1359, [2005] INLR 422, [2005] 2 AC 668, [2005] HRLR 24, [2005] Imm AR 430, [2005] UKHRR 907, [2005] 4 All ER 263
Bailii, House of Lords
European Convention on Human Rights 3, Nationality Immigration and Asylum Act 2002
England and Wales
Appeal fromRegina on the Application of Ruslanas Bagdanavicius, Renata Bagdanaviciene v Secretary of State for the Home Department CA 11-Nov-2003
Failed Roma asylum applicants challenged an order for their return to Lithuania. There had been family objections to the mixed marriage leaving them at risk of violence from the local mafia, and an order for their return would infringe their article . .
CitedSoering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
CitedCruz Varas And Others v Sweden ECHR 20-Mar-1991
Hudoc No violation of Art. 3; No violation of Art. 8; No violation of Art. 25-1 ‘Although the present case concerns expulsion as opposed to a decision to extradite, the Court considers that the above [Soering] . .
CitedTomic v United Kingdom ECHR 14-Oct-2003
The applicant sought to resist his expulsion from the UK.
Held: ‘The Court does not exclude that an issue might exceptionally be raised under Article 6 by an expulsion decision in circumstances where the person being expelled has suffered or . .
CitedVilvarajah and Others v The United Kingdom ECHR 30-Oct-1991
Five Tamils were refused asylum in the UK and returned to Sri Lanka but then continued to suffer ill-treatment. Their complaints to Strasbourg were rejected under both Articles 3 and 13, but with regard to Article 3, it held: ‘108. The court’s . .
CitedHLR v France ECHR 29-Apr-1997
‘Owing to the absolute character of the right guaranteed, the court does not rule out the possibility that article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, . .
CitedAhmed v Austria ECHR 17-Dec-1996
ECHR Judgment (Merits and just satisfaction) Lack of jurisdiction (new complaint); Violation of Art. 3; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and . .
CitedD v United Kingdom ECHR 1997
In the circumstances of the case, where the applicant was in the advanced stage of a terminal illness (AIDS), to implement a decision by the respondent to remove the appellant to St Kitts in the West Indies would be a violation of his rights under . .
CitedSvazas v The Secretary of State for the Home Department CA 31-Jan-2002
The two applicants appealed refusal of their applications for asylum. They had been former members of the communist party in Lithuania. Both had experienced persecution. The IAT had found that the constitution guaranteed them protection. Though they . .
CitedMcPherson v Secretary of State for the Home Department CA 19-Dec-2001
The appellant had entered the UK as a visitor on regular occasions and latterly had used false passport. She was then convicted of supplying Class A drugs, and ordered to be deported. She had children who also were in the UK, and did not wish to be . .
At First instanceBagdanavicius, Bagdanaviciene v the Secretary of State for Home Department Admn 16-Apr-2003
The applicants sought asylum, saying they had been subjected to repeated ill-treatment by Lithuanian Mafiosi. The claims were rejected as clearly unfounded, denying any right to an appeal.
Held: The court could examine the basis upon which the . .

Cited by:
CitedLord Advocate (Representing The Taiwanese Judicial Authorities) v Dean SC 28-Jun-2017
(Scotland) The respondent was to be extradited to Taiwan to serve the balance of a prison term. His appeal succeeded and the order quashed on the basis that his treatment in the Taiwanese prison system would infringe his human rights. The Lord . .

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Human Rights, Immigration

Leading Case

Updated: 01 November 2021; Ref: scu.225292