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Briefing: What does “sufficiency of protection” mean in UK asylum law?
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Briefing: What does “sufficiency of protection” mean in UK asylum law?

The inelegant phrase “a sufficiency of protection” originates in a now obscure series of tribunal determinations from the 1990s. It was eventually entrenched in law by the House of Lords case of Horvath [2001] AC 489, but the diverse judgments of their Lordships combined with the inherent tensions in the idea make this a tricky area of refugee law.

The importance of the idea of sufficiency of protection has waned in UK refugee status determinations as the countries of origin of asylum seekers reaching the UK has shifted over time. It can and still does arise in claims from countries such as Albania, Pakistan and other democracies. If state structures and institutions in countries such as Afghanistan, Iraq and Somalia are re-established and gradually become more effective, and if asylum seekers continue to arrive in the UK from those countries, then the relevance of protection in the country of origin will rise again.

This long read piece explores the concept of sufficiency of protection, the conceptual and practical problems that arise and examines how the case law subsequent to Horvath has addressed these issues. It is adapted and lightly updated from an old paper I wrote on the subject many years ago and recently disinterred. The case law quotes are rather overlong, the piece could do with a contemporary look at how things have evolved since Bagdanavicus in the House of Lords and there’s no conclusion. But I thought I’d get it out there anyway!

What does “sufficiency of protection” mean?

Conceptually the idea of sufficiency of protection arose from the definition of protection proposed by James Hathaway in his seminal The Law of Refugee Status (1991): “the sustained or systemic violation of basic human rights demonstrative of a failure of state protection”.

“Sufficiency of protection” was the inelegant phrase on which the UK Immigration Appeal Tribunal somehow settled in the 1990s to describe the idea that if there was sufficient protection in the country of origin, then a person claiming asylum could not be a refugee because he or she was not really at risk of being persecuted. Self evidently, this begs the question of how “sufficient” this protection must be, what might constitute sufficient protection, what does that look like in practice and what happens where the individual has previously experienced very bad or sustained ill treatment that would normally amount to being persecuted but there is some sort of protection in place for citizens in the country concerned.

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There are other more accessible potential words and phrases to describe this idea. Some commentators and judges have used the words “effective” protection or “sufficient” protection. The rather cryptic, opaque word “sufficiency” has become common usage for UK lawyers and judges as a form of trade shorthand, presumably to incorporate all of the case law and inconsistencies on this subject.

Surrogate protection

The principle of sufficiency of protection grew out of the concept of surrogate protection. The idea of surrogate protection was first propounded by Hathaway in The Law of Refugee Status in 1991, although Hathaway himself rejects the approach adopted by the House of Lords in Horvath. Essentially, Hathaway argues that the Refugee Convention exists to provide on an international level the protection of which an individual is unable to avail himself at a domestic level in his country of origin. This analysis has come to replace the previously prevailing notion that the Refugee Convention existed simply to provide protection from State persecution. As Lord Hope puts it in Horvath:

It seems to me that the Convention purpose which is of paramount importance for a solution of the problems raised by the present case is that which is to be found in the principle of surrogacy. The general purpose of the Convention is to enable the person who no longer has the benefit of protection against persecution for a Convention reason in his own country to turn for protection to the international community.

Lord Clyde takes a similar view of the purpose of the Refugee Convention, also in Horvath:

What it seeks to achieve is the preservation of those rights and freedoms for individuals where they are denied them in their own state. Another state is to provide a surrogate protection where protection is not available in the home state. The Convention assumes that every state has the obligation to protect its own nationals. But it recognises that circumstances may occur where that protection may be inadequate. The purpose of the Convention is to secure that a refugee may in the surrogate state enjoy the rights and freedoms to which all are entitled without discrimination and which he cannot enjoy in his own state. It is essentially against the background of that consideration of the protection which the individual may expect from his home state that the definition has to be understood.

No state is obliged to provide absolute protection at all times to all of its citizens, runs the argument, as such an obligation is unrealistic. Therefore, to acquire surrogate protection under the 1951 Convention, an individual must demonstrate that his own state is unable or unwilling to provide an adequate system of protection, otherwise known as “a sufficiency of protection”.

Extent of the duty to protect

The starting point of any examination of sufficiency of protection must always be the judgments of the Court of Appeal and House of Lords in Horvath. The various judgments are complex and follow diverse lines of reasoning. On the central issue of sufficiency of protection, Lord Hope comments on the necessary standard of protection as follows:

The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals. As Ward L.J. said at p.44G, under reference to Professor Hathaway’s observation in his book at p.105, it is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection.

Lord Clyde’s own comments reflect a similar viewpoint but are perhaps more practical in orientation:

There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must also be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case.

Lord Clyde also endorsed comments made by Stuart-Smith LJ in the Court of Appeal:

It seems to me that the formulation presented by Stuart-Smith L.J. in the Court of Appeal may well serve as a useful description of what is intended, where he said [2000] I.N.L.R. 15, 26, para. 22):

“In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders.”

However, in the later Court of Appeal case of Noune [2000] EWCA Civ 306, Schiemann LJ observed that the majority in the Lords in Horvath did not similarly endorse Stuart-Smith LJ’s comments and went on to suggest that it was possible to misinterpret the relevant passages:

It may be that the Tribunal, applying the test formulated by Stuart-Smith L.J. which we have quoted (which was approved by Lord Clyde but not by the majority in the House of Lords), considered that where the law enforcement agencies are doing their best and are not being either generally inefficient or incompetent (as that word is generally understood, implying lack of skill rather than lack of effectiveness) this was enough to disqualify a potential victim from being a refugee. That is certainly a possible reading of the Lord Justice’s words. If that was the reading adopted by the Tribunal, we consider that it erred as a matter of law.

The fundamental points emerging from the judgments in Horvath are twofold:

  1. The duty of a state to protect its citizens is not absolute, in the sense that no state can absolutely protect all of its citizens all of the time.
  2. If the state has set up and operates an ‘effective’ system of protection for its citizens, it has discharged its duty and surrogate protection under the Refugee Convention (or the ECHR, see below) is not available. This is often referred to as the ‘systemic’ approach to sufficiency of protection, because it emphasises the importance of the creation of a general system rather than the actual protection of any given individual.

Many would argue there is a clear tension between the existence of a general system of protection being ‘sufficient’ and the requirement of the Refugee Convention to examine the individual circumstances and risk to the individual. In Bagdanavicius [2005] 2 AC 668, however, the House of Lords revisited the issue and, perhaps unsurprisingly, concluded that there is no such tension. This judgment is examined in more depth below.

Is the existence of a system sufficient?

It has been argued that the sufficiency of protection adopted in Horvath risks exposing some refugee claimants who are unable to avail themselves of the protection of the authorities of their country of origin to a well-founded fear of persecution. It is all very well if there is a generally effective system of protection in place, but what if it has already failed the person concerned, or there is other evidence that suggests it will fail the person concerned in future?

The Tribunal’s determination in Sirviene provides an example of a finding that the mere existence of a system and the willingness of the state to operate it leads to the conclusion that there exists a ‘sufficiency of protection’ irrespective of the treatment experienced in the past by the asylum seeker:

Criminals and particularly well organised criminals, will continue to function even in a country which has a well organised and effective police force. Protection rackets exist in this country and it is often difficult to persuade witnesses to come forward to give evidence in order to convict those who are responsible. Of course if the police themselves are corrupt and are involved it will make it the more difficult to ensure that such offences are not only detected but are dealt with. The Adjudicator was most impressed with the fact that on economic grounds in 1999 more than twelve hundred policemen had been made redundant and he observed that with crime soaring the decision to reduce police numbers indicated to him the opposite of sufficiency of protection. That is hardly a balanced conclusion. It is not even necessarily a pointer in the direction of lack of sufficiency. The reality is that we have to approach this case on the basis of the House of Lords’ decision in Horvath. There is on all the evidence before us quite clearly an effort being made by the authorities in Lithuania to deal with the problem of organised crime. There is therefore a willingness to provide the necessary protection. It may be said that that willingness does not always exist at the lower level with local police. It is not entirely clear at what level the respondent and her husband made their complaints, but if they were getting nowhere in their local police station or with the lower ranks then surely they should have gone higher.

See also the lengthy determination in Puzova (01/TH/00416) 9 March 2001 (unreported), in which the Tribunal sought to state definitively that there exists a sufficiency of protection for virtually all Roma in the Czech Republic. Even in Puzova, though, the Tribunal made it clear that some exceptional claims might succeed:

It might be that an individual claimant who could show that he was being so targeted to the knowledge of the state authorities, and that they had failed in their specific duty to him (compare the circumstances in Osman) would be entitled to invoke the principle of surrogacy because of a failure in the state system specific to that claimant, but it is not, on the facts we have found, an argument which can be successfully advanced in putting forward a general claim to persecution as a class.

In the New Zealand case of Refugee Appeal No. 71427/99 the respected head of the New Zealand Refugee Appeal Authority, Rodger Haines QC, suggested at paragraphs 62 to 67 that the analysis of the House of Lords explicitly permits refoulement even when there exists a well-founded fear of persecution:

Because this test expressly does not require a finding that the level of protection is such as to reduce the fear of persecution to below the well- founded standard, the English position is that an individual can be returned to his or her country of origin notwithstanding the fact that the person holds a well- founded fear of persecution for a Convention reason.

The Haines interpretation or characterisation of Horvath was rejected in the case of R (Hari Dhima) v SSHD [2002] EWHC 80 (Admin):

…what is critical is a combination of a willingness and ability to provide protection to the level that can reasonably be expected to meet and overcome the real risk of harm from non-state agents.  What is reasonable protection in any case depends, therefore, on the level of the risk, without that protection, for which it has to provide. Such reasoning, in my view, reflects the ratio in Horvath and not the representation of it in the last, conditional sentence in the following passage from a decision of the New Zealand Refugee Status Appeals Authority (No. 71427/99 [2000] INLR 608) declining to follow it:

“…this interpretation of the Refugee Convention is at odds with the fundamental obligation of non-refoulement. Article 33(1) is explicit in prohibiting return in any manner to a country where the life or freedom of the refugee would be threatened for a Convention reason. This obligation cannot be avoided by a process of interpretation which measures the sufficiency of state protection not against the absence of a real risk of persecution, but against the availability of a system for the protection of the citizen and a reasonable willingness by the state to operate that system…  If the net result of a state’s ‘reasonable willingness’ to operate a system for the protection of the citizen is that it is incapable of preventing a real chance of persecution of a particular individual, refugee status cannot be denied that individual.” [my emphasis]

Dhima was endorsed by the Court of Appeal in the case of Bagdanavicius [2003] EWCA Civ 1605, although that explicit endorsement did not feature in the subsequent House of Lords judgment in the same case. 

State and non-state persecution

The concept of sufficiency of protection is relevant only to claims involving persecution by non-state actors. Lord Clyde had the following to say on this subject:

Of course where the state is itself through its agents the persecutor, the question does not require to arise. Active persecution by the state is the very reverse of protection. In that context it is sufficient to proceed simply upon dictionary definitions to stress the high standard of oppression which has to be found… It is in the context of persecution by third parties that the problem of protection becomes more significant.

Lord Hope was just as clear:

In a case where the allegation is of persecution by the state or its own agents the problem does not, of course, arise. There is a clear case for surrogate protection by the international community.

A problem can arise in claims involving persecution by state officials, as such claims might, depending on the circumstances, be classified as state or as non-state persecution. For example, a policeman who assaults a detainee at the police station might be thought to be acting as an ‘agent of the state’ if the assault is part of a crack-down on terrorism or a targeted policy of persecution. The resources of the state have been employed and, as far as the victim is concerned, the policeman is a representative of the state.

However, the policeman might be acting on a personal vendetta, in which case it is far less clear whether the responsibility of the state is engaged. The state may not sanction the actions of the official, therefore suggesting the persecution is not state persecution as such, yet the effect on the victim is similar to state persecution and it is likely to be more difficult to obtain protection.

This category of claim was examined by the Court of Appeal in Svazas [2002] EWCA Civ 74. In the three judgments in this case, all three Lords Justice agreed that the standard of protection available to the individual must be higher in claims involving persecution by state officials. However, Sedley LJ differed from Simon Brown LJ and Sir Stuart-Smith in that he adopted the analysis of Professor Hathaway in The Law of Refugee Status. Sedley LJ states at paragraph 21:

Rather than require to be satisfied that the state is actively or passively complicit in persecution by other citizens, the decision-maker in a case like the present (which does not concern isolated rogue activity) is faced with the state’s undoubted responsibility and must examine what the state is doing about it.

Simon Brown LJ and Sir Stuart-Smith propose a variation on Horvath whereas Sedley LJ appears to distinguish it in cases of widespread abuse by State officials.

In Bagdanavicus, Auld LJ stated in the Court of Appeal that he preferred the approach of Simon Brown and Sir Stuart Smith LLJ and endorsed the idea of a continuum of protection needs and Lord Brown giving the sole reasoned judgment in the House of Lords endorsed that view.

In practice, persecution by state officials will require a higher standard of protection for the individual, and it will therefore be easier to show there is not sufficient protection in place. At paragraph 47 of Svazas, Stuart-Smith LJ states that:

…the more senior the police officers are who are involved in this persecution the more necessary it is for the state to demonstrate that their procedures are adequate and enforced so far as possible. But I would add that the gravity of this ill-treatment is a material consideration. The more serious the ill-treatment, both in terms of duration, repetition and brutality, the more incumbent it is upon the state to demonstrate that it can provide adequate protection.

Simon Brown LJ also adopted this approach:

…there will be a spectrum of cases between on the one extreme those where the only ill-treatment is by non-state agents and on the other extreme those where the state itself is wholly complicit in the ill-treatment. Within that spectrum, the question to be addressed is whether or not the state can properly be said to be providing sufficient in the way of protection. When, however, one comes to address the question in this context rather than in the context of ill-treatment exclusively by non-state agents, one must clearly recognise that the more senior the officers of state concerned, and the more closely involved they are in the refugee’s ill-treatment, the more necessary it will be to demonstrate clearly the home state’s political will to stamp it out and the adequacy of their systems for doing so and for punishing those responsible, and the easier it will be for the asylum seeker to cast doubt upon their readiness, or at least their ability, to do so.

Sedley LJ followed a different line of reasoning but his conclusions concerning the need for a greater degree of protection for victims of state officials were the same, if not stronger.

The nature of a system of protection

If a system of protection is analysed from first principles, it can be seen that it must succeed on two fronts if it is to provide effective protection. In this context, words such as ‘succeed’ and ‘effective protection’ are clearly far from absolute. Firstly, it must deter the criminal from committing a crime in the first place. Secondly, it should offer some form of redress to the victim.

These are not concepts that have been considered properly by the courts, which have preferred broad generalisation to an analysis of what those generalisations mean in practice. Nevertheless, the case law does offer support for this analysis.

Deterrence

In Horvath, the Court of Appeal examined the question of what constitutes a system of protection in a way the House of Lords did not. On the question of how effective a deterrent the system of protection must be, Stuart-Smith LJ states as follows at paragraph 23:

It seems to me to be an unnecessary distortion of ordinary language to say that their fear is not well-founded because there is in existence in the United Kingdom an efficient police force willing to detect and prosecute crime and courts that can and do convict and sentence the criminals. Many such attacks and burglaries go undetected and unpunished. It would only be if the criminal justice system was so effective in detection and deterrence with the result that the risk of such attacks was minimal, that one could say that the fear was not well-founded. This clearly sets the protection test too high.

See also the judgment of Ward LJ:

A criminal justice system must be in place but the receiving State is not obliged to give succour to every asylum-seeker simply because that system may fail to prevent harm befalling him: it will be sufficient if the system in place is one which ordinarily would deter the wrongdoer.

The system of protection must have a deterrent effect but it need not deter all crime: that would be to prevent crime, not to deter it. The Court of Appeal case of Kinuthia [2001] EWCA Civ 2100, discussed further below, also appears to stress the importance of deterrent effect by emphasising that ‘[r]ecourse after mistreatment does not provide adequate protection.’

The clearest examination of the level of deterrence required comes in the case of McPherson [2001] EWCA Civ 2100, where Arden LJ was commenting on the necessity or otherwise for effective protection against domestic violence to include criminal as well as civil sanctions against the perpetrator:

35.  I see no reason in principle why suitably-crafted provisions of the civil law should not have the requisite degree of deterrence as much as provisions of the criminal law.  It all depends on the circumstances and the nature of the provision.

36. My second point is that Article 3 requires a state to provide machinery to deter a violation of that article which attains a satisfactory degree of effectiveness.  The jurisprudence of the European Court of Human Rights provides support for this conclusion.  In Osman v United Kingdom [1999] 1 FLR 193 at 222, the Court said:

“(115) The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see the LCB v the United Kingdom judgment of 9 June 1998, Reports of Judgments and Decisions 1998).  It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions.  It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual…”

37.  The second sentence makes it clear that the provisions of the law required to safeguard the right to life must be “effective”.  Although this paragraph relates to Article 2, in my judgment the same principle applies to Article 3.  The right to life under Article 2 and the right to freedom from torture and inhuman and degrading treatment under Article 3 are both non-derogable rights.  (The third sentence in paragraph 115, above, which is in tentative terms, is not applicable because the situation under consideration is not one where the state has some special knowledge of an extreme situation, as in Osmanitself).  Likewise, in X and Y v Netherlands (1985) EHRR 235 at 241, the European Court of Human Rights, referred to the need for “effective deterrence”.  This was a decision on Article 8 of the European Convention on Human Rights but it was subsequently applied by the European Court of Human Rights to a violation of Article 3:  see A v United Kingdom (1998) 27 EHRR 611 at 629, paragraph 22.

38.  Accordingly, to be “effective”, measures for the purposes of Article 3 must be those which attain an adequate degree of efficacy in practice as well as exist in theory.  If the appellant were able to show to the requisite standard of proof that the remedies provided under the law of Jamaica against domestic violence are unlikely to be an effective deterrent, in my judgment she would have shown that her removal from the United Kingdom to Jamaica would violate her rights under Article 3 of the European Convention on Human Rights.

There is certainly a strong emphasis on a deterrent effect in this passage, which was explicitly approved by the other members of the court. Nevertheless, the deterrent effect need not be absolute, it need only be “effective”, whatever that means. See also ZL and VL v SSHD [2003] EWCA Civ 25 at paragraph 89:

The requirement is not that all crime should be prevented, but that proper steps should be taken to protect Roma and to pursue those who commit crimes against them. (Lord Phillips MR)

The deterrence analysis and McPherson were specifically approved by the Court of Appeal in Bagdanavicius but this approach does not feature in the House of Lords judgment at all.McPherson provides an example of how the requirement for effective deterrence might be argued in a specific scenario, in this case deterring domestic violence. The court held that civil sanctions were sufficient, but it is not hard to imagine other scenarios where there is no adequate deterrent available against a specific type or form of persecution, particularly a gender-specific one.

Redress

The second front on which a system of protection must at least partially succeed is, if a crime is committed, the victim of the crime must have available some form of ‘effective’ redress. Redress may come in many forms; it is clear from Horvath that redress need not be the prosecution and sentencing of the criminal. Stuart-Smith L suggests only that the victims must not as a class be ‘exempt from the protection of the law’ and that there must be a ‘reasonable willingness’ on the part of the law enforcement agencies to ‘detect, prosecute and punish’ offenders.

Clearly the protection need not be 24-hour police protection or a similar, less intensive precautionary method of protection. It could be compensation from an equivalent to the Criminal Injury Compensation Board, perhaps. It could just be a thorough investigation into the crime, an investigation that does not bear fruit for a legitimate reason, such as lack of evidence. Stuart-Smith L explicitly accepts that the crime need not be actually punished as such for the redress to be ‘effective’:

There may be many reasons why criminals are not brought to justice including lack of admissible evidence even where the best endeavours are made; they are not always convicted because of the high standard of proof required, and the desire to protect the rights of accused persons. Moreover, the existence of some policemen who are corrupt or sympathetic to the criminals, or some judges who are weak in the control of the court or in sentencing, does not mean that the state is unwilling to afford protection. It will require cogent evidence that the state which is able to afford protection is unwilling to do so, especially in the case of a democracy.

Nevertheless, redress after the event of persecution is not always going to be adequate or effective protection. It is perhaps best seen as an indicator as to whether there is an effective system of protection in place and whether that system has a deterrent effect, rather than as a key element as to whether the protection is effective. In Kinuthia, examined below, redress was held to be ineffective protection in some cases.

The effectiveness of the system of protection for the individual concerned

It was established in Noune in the Court of Appeal that the judgments of the Court of Appeal and House of Lords in Horvath do not mean simply that the existence of a system of protection automatically precludes victims of non-State persecution from recognition as a refugee. See the comments of Schiemann LJ at paragraph 28(1) (also quoted above):

It may be that the Tribunal, applying the test formulated by Stuart-Smith L.J. which we have quoted (which was approved by Lord Clyde but not by the majority in the House of Lords), considered that where the law enforcement agencies are doing their best and are not being either generally inefficient or incompetent (as that word is generally understood, implying lack of skill rather than lack of effectiveness) this was enough to disqualify a potential victim from being a refugee. That is certainly a possible reading of the Lord Justice’s words. If that was the reading adopted by the Tribunal, we consider that it erred as a matter of law.

The effectiveness of the system of protection for the individual claimant must still be assessed. Where the system of protection is generally effective this may prove difficult but it was reiterated that each decision must be made on the facts of the individual claim.

This has, more or less, been the approach followed by the Tribunal since Noune. In cases involving non-State persecution and where there is a semblance of a system of law and order (an arguable point in some of the countries in which this approach has been followed, such as Afghanistan and Iraq), the Tribunal has held that nearly all claimants will receive sufficient protection but has been careful to state that in some exceptional cases successful asylum claims may be made out.

In, for example, Havilcek (00/TH/01448) 7 June 2000 Collins J, then the new President of the Tribunal, dismissed the appeal but commented that there would still be exceptional Eastern European Roma cases which should be allowed:

13. We did seriously consider whether in the light of the steps which had been taken by the authorities in the Czech Republic to deal with violence against Roma, it would be possible for any Roma, whatever has happened to them in the past, to claim that he or she now has a well-founded fear of persecution. In saying this we recognise that discrimination will undoubtedly continue, but discrimination is not persecution. We have, however, been persuaded that there may be individuals whose past sufferings show that there is a reasonable likelihood of continuing attacks if they were returned so that they can properly be said to have demonstrated a well-founded fear of persecution for a Convention reason. Such individuals will be few and it may be that as time passes and if the state can show a continuing effort to deal with conduct amounting to persecution no Romas will be entitled to be regarded as refugees. We do not think that that time has yet come.

14… We are satisfied that the Special Adjudicator was right to consider the individual circumstances of this case. In particular we accept that the mixed marriage may well make him more of a target of the skinheads who would regard him as a traitor to his race.

Other early tribual examples include Puzova (01/TH/416) 9 March 2001 on Roma in the Czech Republic, CC (Return, Minor, Roma) Romania [2004] UKIAT 45 on Roma in Romania, DK (Croatia) CG [2003] UKIAT 153 for Serbs in Croatia, I (DRC) CG [2004] UKIAT 72 on the Democratic Republic of Congo generally and M (Afghanistan) [2004] UKIAT 4 on returns to Kabul in Afghanistan, to name but a few.

For claimants from democratic countries where there exists a system of protection that is generally accepted to be effective for most citizens, the task of establishing to the relevant standard that the claimant will not be able to obtain effective protection will be always be challenging. Claimants from non-democratic, even anarchic, countries, if returned to a specific area in which some form of state or non-state policing takes place, can face similar problems in making out their claims.

An exception for severe persecution?

In Kinuthia [2002] INLR 133, the Court of Appeal recognised that the existence of a system of protection was meaningless for some victims of persecution. Pill LJ gave the leading judgment:

19… the Tribunal state that if the appellant “were to be maltreated whilst detained pending trial for belonging to this order, then again the information before us would indicate that there is recourse available to her.” Having referred to the activities of Human Rights organisations in Kenya the Tribunal concluded that the appellant:

“… would be protected were she to be abused whilst in prison pending trial…”

20. In my judgment the ordinary reading of paragraph 11 is that the Tribunal have directed themselves that, provided recourse is available to the appellant for severe ill-treatment to her, that is a sufficient protection in Convention terms. I read the paragraph as drafted on the basis that there is a sufficiency of protection provided recourse and remedies for severe ill-treatment are available within the Kenyan legal and administrative system…

21… I am not able to read it as if it had said that there was no serious possibility of maltreatment while the appellant is in custody pending trial. Subsequent judicial action may be insufficient protection against maltreatment pending trial.

22. In my judgment this appeal must for that reason be allowed…

Tuckey and Parker LLJ agreed with the judgment, Tuckey LJ adding:

26. I agree. My problem with the Tribunal’s reasons is that they do not make any finding as to whether the appellant faced a real risk of severe ill-treatment in custody. They simply say that if she were mistreated she would have a right of recourse. Recourse after mistreatment does not provide adequate protection.

If the system does not have a deterrent effect (and the fear is therefore well-founded) but does offer redress in the form of an effective criminal prosecution of the perpetrator, this will be scant consolation to a victim who has suffered death or other severe and irreparable harm. In Kinuthia the harm feared was serious ill-treatment and torture in detention and it was held that the Tribunal had erred in holding that an effective system of redress amounted to a sufficiency of protection for the claimant.

Kinuthia offers a possible limited exception to the general rule that the existence of a general system of protection will defeat a claim for refugee status. Redress after the event may not amount to sufficient protection for victims of severe persecution. 

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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