AW v The Secretary of State for the Home Department

General systemic sufficiency of state protection is only the starting point in an asylum or Article 3 assessment. A claimant may nevertheless establish a well-founded fear or real risk where the authorities know or ought to know of circumstances particular to the claimant but are unlikely to provide the additional protection those circumstances reasonably require.

The assessment must give proper weight to past persecution or serious harm. It must ask whether there are good reasons to conclude that the harm, and the prior lack of adequate protection, will not be repeated. An adjudicator errs by considering only whether the state has a generally functioning, non-discriminatory criminal justice system.

The appellant, a Pakistani former police officer, appealed against an Immigration Judge’s dismissal of his asylum, humanitarian-protection and human-rights appeal. His account, which was substantially accepted, was that he had become an enemy of the MQM after refusing to release its supporters and acting against graffiti. His brother and wife were subsequently killed, and an FIR alleging kidnapping meant that he would be arrested and returned to Sindh if removed.

The Immigration Judge found general sufficiency of protection in Pakistan and dismissed the appeal. The central issue was whether that conclusion adequately addressed the appellant’s particular history of persecution, the MQM’s local influence, and the protection likely to be available to him in custody and on return.

1. Appeal allowed. The Immigration Judge made a material error of law. His reasoning addressed only whether Pakistan had a generally sufficient and non-discriminatory criminal justice system. It did not apply the required inquiry into the appellant’s individual circumstances.

2. Regulation 4 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, reflecting the approach in Horvath v Secretary of State for the Home Department [2001] 1 AC 489, makes systemic protection the starting point. A generally effective system does not, however, decide the case.

3. Applying the propositions of Auld LJ in Bagdanavicius [2005] EWCA Civ 1605, the Tribunal held that a claimant may still have a well-founded fear of persecution or an Article 3 risk where the authorities know or ought to know of circumstances specific to that claimant but are unlikely to provide the additional protection reasonably required. The Immigration Judge failed to consider that question.

4. The appellant’s past persecution required particular weight under Rule 339K of the Immigration Rules. His brother and wife had been killed after he opposed local MQM interests. There were no good reasons to find that the local MQM would not repeat such conduct. His likely arrest and return to Sindh would require him to confront the same local group while defending the kidnapping allegation.

5. Although the evidence did not establish general insufficiency of protection in Pakistan, the cumulative personal circumstances provided a compelling basis for finding that the authorities would be unlikely to provide the additional protection required. Internal relocation was not a viable issue because the FIR would lead to his transfer to the Karachi police wherever he went in Pakistan. The decision was remade by allowing the appeal on asylum and human-rights grounds.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the Immigration Judge’s decision for material error of law, and remade it by allowing the asylum and human-rights appeal.
• Immigration Judge, Glasgow: on 20 March 2009 dismissed the appeal on asylum, humanitarian-protection and human-rights grounds.