Noune v Secretary Of State for the Home Department

Where persecution is inflicted by non-state actors, refugee protection depends on whether the home state provides the practical protection which the international community expects. A total collapse of state protection is unnecessary. The question is whether there is a reasonable likelihood of persecution for a Convention reason on return, assessed in the round and with attention to the future risk.

Political opinion may be imputed. Inactivity, unwillingness to co-operate, dress, employment and other circumstances may together lead persecutors to attribute a political opinion to the claimant. Past avoidance of injury, temporary returns, or inadequate attempts to obtain protection do not determine the future risk. Physical injury is not a prerequisite to refugee status.

The appellant, an Algerian civil servant, claimed asylum after threats from Islamist militants who sought to recruit her to transmit messages. The Special Adjudicator accepted her credibility but dismissed the claim. The Immigration Appeal Tribunal also dismissed her appeal, accepting that the threats were connected with non-co-operation but finding no Convention reason and no insufficiency of state protection.

The appeal concerned whether the Tribunal had applied the correct test for persecution by non-state actors, whether it had assessed the risk on return rather than primarily the past events, and whether it had wrongly required a total collapse of Algeria’s protective machinery.

The Court, in a judgment delivered by Lord Justice Schiemann on behalf of the Court, allowed the appeal with costs and remitted the case to a differently constituted Immigration Appeal Tribunal.

1. Applicable legal test. Persecution by third parties can engage the Convention where the home state fails to provide the practical protection expected by the international community. The standard is not a guarantee of protection, and a total collapse of the state’s protective machinery is not required. If the Tribunal treated effective but imperfect law enforcement as automatically excluding refugee status, that would be an error of law.
2. Future risk. The critical question was whether there was a reasonable likelihood that the appellant would be persecuted for a Convention reason if returned to Algeria. Her past failure to make further efforts to obtain protection was not, by itself, relevant to that future assessment. The Tribunal also needed to consider whether she would be protected in any former employment and whether past avoidance of injury resulted from hiding.
3. Convention reason. Political opinion may be express or imputed. Although the original threats might have sought only to secure co-operation, future violence might be inflicted because the appellant’s refusal to assist the Islamists was perceived as evidence of political opposition. Her unwillingness to aid them and her refusal to wear the veil could therefore be relevant to the Convention reason.
4. Evaluation of evidence. The Tribunal had to distinguish isolated and random attacks from persecution of persons perceived to oppose the Islamist cause. It had to assess the evidence in the round, including the scale of violence, the effectiveness of law enforcement, the appellant’s concealment, and the significance of her returns to Algeria. Physical injury was not a prerequisite for refugee status.
5. The Court declined to substitute its own factual assessment. The appeal was therefore allowed and the matter remitted to a differently composed Tribunal to apply the current law to the current factual situation.

• Immigration Appeal Tribunal: dismissed the appellant’s asylum appeal.
• Court of Appeal (Civil Division): allowed the appeal, awarded costs, and remitted the case to a differently constituted Immigration Appeal Tribunal.