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

Facts:

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:

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