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UK - NA and VA v Secretary of State for the Home Department, 29 May 2015
Country of applicant: India, Pakistan
Keywords: Actors of protection, Internal protection, Persecution (acts of), Persecution Grounds/Reasons, Protection, Refugee Status

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.

Date of decision: 29-05-2015
Relevant International and European Legislation: EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004,Art 7.2,Art 7,Art 7.1 (a),Art 7.1,UNHCR Handbook,Art 7.1 (b),Art 7.3,EN - Convention for the Protection of Human Rights and Fundamental Freedoms,Article 2,Article 5,Article 8,EN - Recast Qualification Directive, Directive 2011/95/EU of 13 December 2011,Article 7
Spain – Supreme Court, 11 May 2009, 3155/2006
Country of applicant: Nigeria
Keywords: Assessment of facts and circumstances, Actors of protection

The applicant claimed asylum on the grounds of having suffered female genital mutilation (FGM) and being subject to a forced marriage. The Ministry of Interior refused the application and the applicant lodged an appeal before the High National Court who also rejected the appeal (the applicant was granted a residence permit for humanitarian reasons). The applicant filed an appeal to the Supreme Court.

Date of decision: 11-05-2009
Relevant International and European Legislation: EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004,1951 Refugee Convention,Art 1A (2),Art 9.2 (f),Art 7.1 (a),Art 9.2 (a)
Spain - Supreme Court, 2 January 2009, 4251/2005
Country of applicant: Colombia
Keywords: Burden of proof, Internal protection, Non-state actors/agents of persecution

The Supreme Court held, in light of a UNHCR Report concerning Colombian asylum seekers, that the burden of proof had been reversed; the High National Court had to establish that the Colombian authorities could effectively protect the applicant from the agents of persecution.

Date of decision: 02-01-2009
Relevant International and European Legislation: EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004,1951 Refugee Convention,Art 8,Art 6 (c),Art 7.1 (a),Art 4.5,Art 1A
Germany - Administrative Court Stuttgart, 8 September 2008, A 10 K 13/07
Country of applicant: Lebanon
Keywords: Assessment of facts and circumstances, Credibility assessment, Internal protection, Non-state actors/agents of persecution, Persecution Grounds/Reasons, Membership of a particular social group

A Lebanese woman was recognised as a refugee after a death threat by her brother because of her way of life. The court found:

  1. State protection doesn’t exist against ‘honour killings’ in Lebanon.
  2. Women who do not accept discrimination and denial of rights, which are based on tradition and social circumstances in their home country, constitute a particular social group in terms of Art. 10 (2) (d) of the Qualification Directive.
  3. Even a single person can be a non-state actor under Section 60 (1) sentence (4) (c) of the Residence Act (identical to Art 6 (c) of the Qualification Directive).
Date of decision: 08-09-2008
Relevant International and European Legislation: EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004,Art 7.2,Art 8,Art 10.1 (d),Art 4.3 (c),Art 6 (c),Art 4.3 (b),Art 7.1 (a),Art 5.1
UK - House of Lords, 6 July 2000, Horvath v. Secretary of State for the Home Department [2000] UKHL 37
Country of applicant: Slovakia
Keywords: Actors of protection, Actor of persecution or serious harm, Non-state actors/agents of persecution, Refugee Status

In cases where the applicant fears persecution from non-state actors, the home state can be judged to provide protection if it has in place a system of domestic protection machinery for the detection, prosecution and punishment of such acts, and has an ability and readiness to operate the machinery.  Where the line is drawn will depend on the facts of the case.

Date of decision: 06-07-2000
Relevant International and European Legislation: EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004,Art 7.2,Art 7,Art 6,Art 6 (c),Art 7.1 (a),Para 65,Para 51,EN - Convention for the Protection of Human Rights and Fundamental Freedoms,Article 3