NA & Anor v Secretary of State for the Home Department

Article 7(2) of the Qualification Directive does not make an effective system for detecting, prosecuting and punishing persecution conclusive of sufficient protection. The word generally means normally or in the generality of cases. Protection must therefore be assessed in the claimant’s individual circumstances, including access to the available system and whether further reasonable protective measures are required.

The provision is non-prescriptive. It specifies neither minimum nor maximum measures, and its requirement that protection actors take reasonable steps incorporates proportionality and a margin of appreciation. Where the asserted persecution threatens life, the domestic assessment must also apply the Article 2 Osman test.

The appellants, a Pakistani husband and Indian wife, married against their families’ wishes. Their families threatened to kill them. The Secretary of State refused their asylum and humanitarian-protection claims, concluding that they could obtain protection, or relocate internally, in either Pakistan or India.

The First-tier Tribunal dismissed their appeals on 11 March 2013. Following an unusual procedural history, including Court of Session proceedings, permission to appeal was granted. The Upper Tribunal considered the proper construction of Article 7 of the Qualification Directive and whether the First-tier Tribunal had lawfully assessed sufficiency of protection, internal relocation and the Article 2 risk to life.

1. The appeals were allowed. The First-tier Tribunal’s decision was set aside because its errors in assessing protection in India and Pakistan were material. The Upper Tribunal reserved the mechanics of remaking the decision pending submissions.

2. Article 7(2) of the Qualification Directive treats protection as generally provided when the identified actors take reasonable steps, including by operating an effective legal system for detection, prosecution and punishment, to which the applicant has access. “Generally” means normally or in the generality of cases. Accordingly, such a system and access to it may nevertheless fail to amount to protection in an individual case.

3. The omission of inter alia from regulation 4(2) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 did not create a deficient transposition. Article 7(2) is non-prescriptive: it imposes neither fixed minimum nor maximum measures. The reasonable-steps standard permits a context-sensitive assessment of practical measures, which may include protection beyond ordinary criminal-law enforcement.

4. Where the claimed persecution is a threat to life, the Article 2 Osman test must be applied. The relevant questions include whether there is a real and immediate risk to an identified person from a third party, whether the authorities knew or ought to have known of it, and whether reasonable measures within their powers might have avoided it.

5. For India, the First-tier Tribunal acknowledged serious deficiencies in policing and the response to honour killings but did not explain whether political will and intended improvements counterbalanced them. It also failed to address detection, punishment or potentially necessary additional measures. For Pakistan, it treated official willingness to act as sufficient without assessing the efficacy and accessibility of protection, the threats’ nature, relevant country evidence, or the Osman test.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appellants’ appeal, set aside the First-tier Tribunal’s dismissal and reserved the remaking exercise.
• Court of Session: In NA, VA, Petitioners [2014] CSOH 27, transferred the challenge to the Upper Tribunal. The Court of Session later reduced the Upper Tribunal’s earlier refusal of permission to appeal.
• First-tier Tribunal: Dismissed the appellants’ appeals on 11 March 2013.