NA & Anor v Secretary of State for the Home Department

The origins of these conjoined appeals lie in a decision made on behalf of the Secretary of State for the Home Department (the “ Secretary of State ”), dated 18 January 2013, whereby it was determined that neither of the Appellants, who are of Pakistani and Indian nationality respectively and are husband and wife, qualifies for the grant of asylum or humanitarian protection. The Appellants’ ensuing appeals to the First-tier Tribunal (the “ FtT ”) were dismissed. Given the atypical and protracted history of these appeals, we requested that a comprehensive chronology be prepared. The response of the Appellants’ representatives was prompt and efficient and the chronology thus compiled is appended to this decision.

Certain facts are uncontroversial, while others have been established by the findings of the FtT. It is unnecessary to rehearse all of them in extenso . The Appellants are married. The first Appellant, the husband, is a national of Pakistan. He was the subject of an arranged engagement to be married to his first cousin in 2000, when he was aged 13 years. In September 2010 he entered the United Kingdom in accordance with a student visa which was subsequently extended, followed by a Tier 1 Post-Study Work visa valid until 20 September 2013. His father works in the oil industry and his brother works for the Pakistani security services. One of his uncles is involved in the Pakistan Muslim League. In 2012 one of this Appellant’s cousins was killed in a so-called “honour killing” because he wished to marry a girl of lower caste.

The second Appellant, of Indian nationality, had a similar immigration path in the United Kingdom, having entered initially in January 2009. In March 2012 the Appellants became engaged and the second Appellant converted to Islam. This occurred because the first Appellant could not contemplate marrying anyone other than of the Muslim faith. Both Appellants concealed the engagement from their respective families. They lived together from May 2012 and were married on 06 September 2012. When they informed their families of this event thereafter, a hostile reaction materialised. The second Appellant’s father is a retired member of Parliament and a current political activist. Both Appellants were told by their families that they had brought dishonour upon them and, in the case of the first Appellant, dishonour upon his former fiancée also. They were warned that they would be killed in consequence.

In the refusal decisions the Secretary of State accepted that the Appellants are married to each other and have a loving, genuine and subsisting relationship. The threats by both parties to kill the Appellants were also accepted. The Secretary of State considered that the second Appellant would, as a matter of reasonable probability, be able to enter and reside in Pakistan as the Indian spouse of a Pakistani national. The next question considered was that of sufficiency of protection. The Secretary of State, having cited certain country guidance decisions of this Tribunal, noted that while there is no general insufficiency of state protection in Pakistan, the individual circumstances of the Appellants had to be considered in assessing whether there was a well founded fear of persecution. Having noted the salient elements of their protection claims, the Secretary of State concluded that the Appellants had failed to establish insufficient or inefficacious state protection in Pakistan. It was considered, in the alternative, that the Appellants could safely relocate internally within Pakistan. The prospects of the putative persecutors locating the Appellants within Pakistan were considered remote.

Next, the decision maker assessed the Appellants’ claims in the separate context of risk on return to India. The first evaluative assessment made was that, being the spouse of an Indian national, the first Appellant would probably be able to enter and reside in India. Having considered certain pieces of country evidence, various developments and improvements in the Indian justice and legal system were noted. This gave rise to a conclusion that, notwithstanding deficiencies in the police forces and judiciary, the Appellants had failed to demonstrate either an inability or an unwillingness on the part of the Indian authorities to protect them. It was considered, in the alternative, that relocation within India was a reasonable option for the Appellants.

While it will be necessary to examine certain aspects of the determination of the FtT in a little detail in due course, it suffices to record at this juncture that, in substance, the dismissal of the Appellants’ appeals entailed an endorsement of the main elements of the Secretary of State’s decision.

The appeal to this Tribunal has two main dimensions. The first involves a question of principle relating to the correct construction of Article 7 of the Qualification Directive. The second is appeal specific, concerning certain aspects of the decision of the FtT.

Council Directive 2004/83/EC prescribes certain minimum standards for the qualification and status of third country nationals, or stateless persons, as refugees or otherwise in need of international protection. The key provision of the Directive in the context of this appeal is Article 7 which, under the rubric “Actors of Protection”, provides

We summarise the rival arguments, which were of conspicuous ability, thus. On behalf of the Appellants, Ms Irvine formulated the issue of principle in terms of whether a general sufficiency of protection that includes and is limited to a system of detection, prosecution and punishment of crime is compliant with Article 7 of the Directive. She drew attention to the recognition in the UNCHR Handbook that persecution is not confined to state actors but “…. may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned ”. Conduct of this kind constitutes persecution where the acts concerned “ … are knowingly tolerated by the authorities or if the authorities refuse, or prove unable, to offer effective protection ”. Ms Irvine submitted that the measures specified in Article 7(2) of the Directive are, by virtue of the words “ inter alia ”, inexhaustive. Thus it is necessary to enquire whether, in the generality, the state system under scrutiny provides any other safeguards, such as an effective witness protection programme or a womens’ refuge. The operation of an effective state legal system which includes the essential elements of the detection, prosecution and punishment of crime may not equate to adequate protection in a given case. Irrespective of whether further mechanisms exist, it will still be necessary, under domestic law, to apply the “Osman” test ( Osman v United Kingdom [2000] 29 EHRR 245).

On behalf of the Secretary of State, Mr Komorowski compared the law before and after the advent of the Qualification Directive, submitting that there is no difference in substance between the two. He further submitted that notwithstanding the omission of the words “ inter alia ” in regulation 4(2) of the 2006 Regulations, there is no material distinction between this provision and Article 7(2) of the Directive. The proper construction of regulation 4(2) is that it does not prescribe an exhaustive list of measures, by virtue of the word “ generally ”, with the result that the omission of “ inter alia ” makes no difference.

It is appropriate to highlight some of the judicial decisions bearing on these issues. The decision in Horvath v Secretary of State for the Home Department [2001] 1 AC 489 is to the effect that there are two fundamental tests to be satisfied in order to qualify for refugee status, namely the “fear test” and the “protection test”. In the present appeal, the focus is on the second of these tests. The close association between the Horvath formulation and regulation 4(2) was acknowledged by the AIT in IM (Sufficiency of Protection) Malawi [2007] UKAIT 00071, at [50], having noted the omission of the phrase “ inter alia ”:

The provision and operation of a state system for the detection, prosecution and punishment of crime is an internationally recognised norm of long standing. An informative illustration of measures extending beyond and additional to this provision is found in AB (Protection – Criminal Gangs – Internal Relocation) Jamaica CG [2007] UKAIT 00018, where the persecution under consideration related to the activities of an organised criminal gang and the threat which this posed to the Appellant. The Tribunal stated in [153]:

We consider that the distance separating the parties on the “inter alia issue” is slight. In our judgement, the effect of the inclusion of the phrase “ inter alia ” in regulation 7(2) is to lay emphasis on the word “ generally ”. This word, an unpretentious member of the English language, denotes, uncontroversially, normally or in the generality of cases . Thus it contemplates that the specific measures which follow might not, in an individual case, be sufficient to constitute “ protection ”. It follows that the operation of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm and (our emphasis) access thereto by the applicant may not, in a given case, amount to protection. We agree with Mr Komorowski that, as a matter of construction, Article 7(2) yields this construction with or without the phrase “ inter alia ”. It follows that there is no deficiency of transposition in regulation 4(2) of the 2006 Regulations.

Thus the central theme of the language of Article 7(2), which was doubtless chosen with care and intent following the usual process of representations, negotiations and deliberations among Member States, is that it is non-prescriptive in nature. The word “ generally ” and the phrase “ inter alia ”, in tandem, have certain other effects. First, they clearly confer choice, or discretion, on the state concerned. Article 7(2) does not compel a state to devise any particular measures of protection. Second, Article 7(2) prescribes neither minima nor maxima. Thus it is conceivable that, in certain states, practical and effective protection could be provided by measures and arrangements which, viewed through the lens of an advanced first world country, do not equate to an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm and access thereto by the individual. For example, a measure of pure deterrence or prevention based on fear of clan or family reprisals might have to be reckoned in a given context. This is consistent with the intrinsically individual nature of each case and the fact sensitive context to which the judicial inquiry will be directed.

There is a further effect of the language used which is also worthy of comment. Article 7(2) speaks of “ the actors mentioned in paragraph 1 ”. These are not confined to state agencies. In principle, it seems unlikely that in many countries of the world the measures following the words “ inter alia ” will be devised or provided by “ parties ” or “ organisations ” of the kind envisaged. As a result, measures which may appear unfamiliar, unconventional or unorthodox in developed states may, in principle, constitute, or contribute to, effective protection against persecution. This is illustrated in the recent decision of the Upper Tribunal in MOJ and Others (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) where, in considering the issue of sufficiency of protection, the Tribunal identified what it described as an “ apparatus of protection ” for civilians, composed of assorted elements: the armed forces, the police force, the district police composed mainly of dominant clan members, the “ nuclear family ”, armed private guards and a functioning central government: see [358]–[363]. This is consistent with the UNHCR Handbook, at [65]. Thus, to instance another illustration, the availability of womens’ shelters in Pakistan guarded by armed bodyguards should be considered in assessing the overall system of protection.

The further feature of Article 7(2) of the Qualification Directive worth highlighting in the present context is the standard of “ reasonable steps ”. This imports the familiar concepts of margin of appreciation and proportionality (cf Re Officer L , infra ). Moreover, it forges a direct link between this measure of EU law and the ECHR, specifically Article 2 of the latter and the “Osman” principle ( infra ).

The “ reasonable steps ” required to provide effective protection could, in principle, embrace a broad array of measures. Thus, while in the present case the emphasis is on the need for an efficacious witness protection model, other measures may be required, depending on the individual context: for example, home security; enhanced police protection; simple warnings and security advice to the person concerned; the grant of a firearms licence; or, in extremis , what has come to be known in the United Kingdom as a comprehensive “relocation” package, which may involve a change of identity, accompanied by appropriate financial and logistical support. In law, context is everything: per Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532. Furthermore, we would highlight the related principle that the claimant must provide clear and convincing evidence of the inability of his home state to provide efficacious protection to its citizen. This stems from the underlying rationale of international protection as a surrogate, coming into operation as a last resort: see Canada (Attorney General) v Ward [1993] 2 SCR 689.

It is common case that where the persecution asserted is a threat to life, the Osman test must, as a matter of domestic law, be applied, given that Article 2 ECHR is one of the Convention rights protected by the Human Rights Act 1998. The decision of the ECtHR in Osman concerned the positive duty on state authorities to protect life derived from Article 2. There was no dispute that this obligation extends beyond the state’s primary duty to secure the right to life by devising effective criminal law provisions and appropriate law enforcement machinery for the prevention, suppression and punishment of offences. The Court’s starting point was that:

While the Osman test has been considered at the highest judicial level in the United Kingdom and the jurisprudence has developed, inter alia , in the definition of what constitutes “ a real and immediate risk ” – see Re Officer L (Northern Ireland) [2007] UKHL 36, which also examined the state’s common law duty to protect a witness – it is unnecessary to elaborate on these decisions in the present context. The Osman question raises no point of novel principle in this appeal. Rather, it is confined to the consideration of whether the decision at first instance is vitiated by a material error of law. To this we shall now turn.

There is, regrettably, some uncertainty about the scope of this appeal. This is attributable at least in part to its unusual history, rehearsed in the Appendix hereto. The materials bearing particularly on this issue include the “Variation of Grounds of Appeal” document, the interlocutor of Lord McEwan dated 08 January 2014, the incorporation in the latter of the “Robinson” principle, the grounds of appeal to the First-tier Tribunal (the “ FtT ”), the grounds of appeal to this Tribunal and the grant of permission to appeal. In the unusual circumstances enveloping these proceedings we are inclined to adopt a broad approach to this issue.

The main thrust of the submission of Ms Irvine was that the FtT erred in law in its treatment of the sufficiency of protection and internal relocation issues which, in the present context, merge to a significant extent. We review the decision of the FtT bearing in mind the Appellant’s core contention, namely that state protection in both India and Pakistan is ineffective in the absence of an efficacious witness protection scheme and internal relocation does not provide a solution.

The most recent Home Office “Country Information and Guidance” relating to Pakistan, published in October 2014, contains the following passage (at 2.8.18):

As regards the scenario of returning to and/or settling in India, our analysis of the determination of the FtT is as follows:

As regards the alternative scenario of returning to/settling in Pakistan, our analysis of the determination of the FtT is as follows:

We cannot be confident that a dismissal of the Appellants’ appeals to the FtT would have resulted irrespective of the errors of law identified above. In our estimation they are clearly material.

On the grounds and for the reasons elaborated above: