UK - House of Lords, 11 October 2010, R (Bagdanavicius) v Secretary of State for the Home Department (UKHL) [2005] UKHL 38

What was at stake

EDAL summary. The House of Lords confirmed that in addition to establishing a real risk of harm, the applicant would also have to show that their state has failed to provide reasonable protection.

What happened

The applicants were a Lithuanian married couple with a three‑year‑old son; the husband was of Roma ethnicity while the wife was not. Because of this they were subjected to persistent harassment and violence by the wife's brother and his associates in Lithuania. They fled Lithuania in 2002 and claimed asylum in the United Kingdom, but their claims were refused and later certified as clearly unfounded. They appealed the certification by judicial review, arguing that only a real risk of harm on return was required.

What the court decided

The House of Lords ruled that for harm inflicted by non-state actors to constitute ill-treatment under Article 3 of the European Convention on Human Rights, an applicant must demonstrate not only a real risk of harm but also that their state has failed to provide reasonable protection against such harm. The court clarified that a state is not in breach of Article 3 for harm by criminal gangs unless it has failed in its positive duty to provide reasonable protection.

How the court got there

The House of Lords held that for ill‑treatment by non‑state actors to engage Article 3 of the European Convention on Human Rights, the applicant must demonstrate both a real risk of harm and that the State has failed to provide reasonable protection against that risk. Because the applicants had not shown that the Lithuanian authorities were unwilling or unable to protect them, the appeal was dismissed.

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