UK: Upper Tribunal guidance on sufficiency of protection

Date: 
Friday, June 19, 2015

The applicants in the case of N.A. and V.A. v. Secretary of State for the Home Department are asylum seekers from India and Pakistan respectively, who got married contrary to the wishes of their families and were threatened with honour killing. The Home Office found these claims credible but refused to grant asylum on the basis that they could go to either India or Pakistan where there was sufficient protection or the possibility to internally relocate in order to live in safety.  They appealed, arguing that state protection in India and Pakistan was ineffective in the absence of an effective witness protection scheme, and that internal protection alternative did not provide a solution.

The Tribunal examined difference in wording between the UK’s transposition of the Article 7 of the Qualification Directive into domestic law in regulation 4(2) Qualification Regulations. The latter omits the words ‘inter alia’ while the Directive states that: “Protection shall be regarded as generally provided when the actors mentioned … take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm…”

The Upper Tribunal considered that this did not make any substantive difference, and neither provision prescribed an exhaustive list of measures to be taken to ensure effective protection. The word ‘generally’ meant that even if these measures were available and accessible this may not amount to sufficient protection in a given case. States had a choice of what measures of protection to implement which could embrace a broad array of measures depending on the individual context.

The Upper Tribunal found errors of law in the lower court’s reasoning for providing undue emphasis on the political will of the Indian and Pakistani authorities to take action against honour killings, despite identified deficiencies in  State protection, without properly considering the efficacy of available measures or whether the appellants would have access to them.

It gave the following guidance on the Qualification Directive (which applies equally to the recast Directive):

The word “generally” in Article 7(2) …denotes normally or in the generality of cases. Thus the operation of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm and access to such system by the claimant may not, in a given case, amount to protection. Article 7(2) is non-prescriptive in nature. It prescribes neither minima nor maxima. The duty imposed on states to take “reasonable steps” imports the concepts of margin of appreciation and proportionality.

For further information on the concepts of ‘internal protection alternative’ and ‘actors of protection’, please see the comparative report published by ECRE and project partners as part of the APAIPA project.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

                                                     

 

Keywords: 
Actors of protection
Internal protection