UK - NA and VA v Secretary of State for the Home Department, 29 May 2015

Country of Decision:
Country of Applicant:
Date of Decision:
29-05-2015
Citation:
NA and VA (protection: Article 7(2) Qualification Directive) India [2015] UKUT 00432 (IAC)
Court Name:
Upper Tribunal (Immigration and Asylum Chamber)
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Headnote: 

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) of the Qualfication Directive is non-prescriptive in nature. The duty imposed on states to take “reasonable steps” imports the concepts of margin of appreciation and proportionality.

Facts: 
NA and VA are married. NA, Pakistani husband, arrives in September 2010 following arranged engagement at age of 13 to first cousin in 2000. Valid UK visas until 20 September 2013.
VA, Indian wife, arrived in January 2009. Couple engaged in March 2012, VA converts to Islam. Lived together from May 2012, married on 6 September 2012. Kept engagement secret. When revealed, both families say NA and VA will be killed for bringing dishonour.
Both apply for asylum on 21 December 2012 with extant leave to remain.
First Tier Tribunal (FTT) decides on 18 January 2013 that both have a sufficient level of State protection in Pakistan. Safe relocation to Pakistan considered possible. Relocation to India also considered reasonable. Appeal lodged same day.
11 March 2013 - FTT dismisses appeals.
16 April 2013 - permission to appeal refused by FTT.
22 May 2013 - permission to appeal to Upper Tribunal refused.
4 January 2014 - VA discovers she is pregnant.
8 January 2014 - 22 May 2013 decision judicially reviewed.
27 September 2014 - Appellants' daughter is born.
9 January 2015 - after complex series of proceedings, permission to appeal on amended grounds granted.
 
Decision & Reasoning: 

There are two elements to the appeal:

The first related to the correct construction of Article 7 Qualification Directive. The applicants argued that a general sufficiency of protection that includes and is limited to a system of detection, prosecution and punishment of crime does not comply adequately with Article 7 protection requirements. Other safeguards are required. Omission of the words "inter alia" in the 2006 Regulations compared to the Qualification Directive mean Regulations are not an exhaustive transposition of the Directive.

Secondly, the FTT erred in law in its treatment of the sufficiency of protection and internal relocation issues.

With regards to the first argument the Tribunal held that the Regulations and the Directive have the same meaning, despite the absence of the term "inter alia": an effective legal system for the detection, prosecution and punishment of persecution/serious harm and access to such system by the claimant may not, in a given case, amount to protection. Article 7(2) is therefore non-prescriptive: it does not compel a State to take any specific action, only achieve an outcome. It prescribes neither minima nor maxima; what works in one State may not work in another. Protection can also be provided by various "actors", solely or in conjunction, as specified in the Upper Tribunal decision, MOJ and Others (Return to Mogadishu) Somalia.

The Directive's term "reasonable steps" to provide effective protection imports a margin of appreciation and proportionality re protection, forging a direct link between EU law (the Directive) and the ECHR. The term covers a wide range of measures, hinging on the individual context, such as home security and enhanced witnessed police protection.

Following Osman, where there is a threat to life, the State has (using reasonable steps) a positive duty to protect that extends beyond the generalities of Article 7(2). The duty to take such case-sensitive and specific protective measures arises where; first, there is a real and immediate risk to the life of an identified person(s) from the criminal acts of a third party; second, the relevant State agencies knew or ought to have known of this risk.

Moving on to the second point of contention the Court of Appeal referred to the FTT’s determination who acknowledged the Indian authorities' failures to address and prevent honour killings, and the deficiencies of the police. Whilst the FTT then considered improvements, it was not sufficiently reasoned that these provided an effective counterbalance. The FTT only considered prosecution, not detection and punishment, nor whether additional protective measures would be necessary in the specific case. It was also not clear whether the FTT was assessing the issue of a reasonable degree of likelihood of harm or that of sufficiency of State protection.

There were thus errors of law in the FTT's consideration of relocation within India.

In terms of relocation to Pakistan, the FTT only considered willingness of Pakistani authorities to address honour killings, not the efficacy of these measures nor the Applicants' access to these, as required by Article 7(2) of the Qualification Directive. Nor did the FTT consider the element of protection, nor the nature of the threats to the Applicants, nor the Osman test.

The above errors of law were therefore "clearly material" to FTT's decision.

Outcome: 

The FTT decision was set aside. A further hearing needed plus submissions by the parties within 14 days of this decision, in order to remake the decision.

Subsequent Proceedings : 

Unknown.

Observations/Comments: 

This case explores the concept of sufficiency of protection as codified in the Qualification Directive. It emphasises that protection must be effective for the particular individual concerned. Indeed, a general “willingness” does not amount to sufficient protection.

This case summary was written by Ben Wild, a trainee solicitor with an MA in International Law from UN University for Peace in Costa Rica. 

Other sources cited: 

Home Office “Country Information and Guidance” relating to Pakistan, published in October 2014. 

Case Law Cited: 

Canada - (Attorney General) v Ward [1993] 2 SCR 689

UK - KA and Others (Domestic Violence – Risk on Return) Pakistan CG [2010] UKUT 216 (IAC)

UN - R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532

UK - In re Officer L (Respondent) (Northern Ireland) [2007] UKHL 36

UK - MOJ and Others (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC)

UK - MN v Secretary of State for the Home Department [2011] CSOH121

UK - MacPherson v Secretary of State for the Home Department [2001] EWCA Civ 1995

UK - AB (Protection – Criminal Gangs – Internal Relocation) Jamaica CG [2007] UKAIT 00018

UK - Haddadi v Secretary of State for the Home Department [Appeal Number 00TH02141]

UK - IM (Sufficiency of Protection) Malawi [2007] UKAIT 00071

UK - Osman v United Kingdom [2000] 29 EHRR 245