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Sufficiency of protection and EU refugee law

Sufficiency of protection and EU refugee law

Just a quick alert for now (I’ll come back and update this when I get a chance) but an interesting looking new case was reported last week on the generally unexplored issue of the concept of sufficiency of protection, invented in the House of Lords case of Horvath, and its reflection in EU law in the Qualification Directive. The case is NA and VA (protection: Article 7(2) Qualification Directive) India [2015] UKUT 432 (IAC) and the official headnote reads:

The word “generally” in Article 7(2) of Council Directive 2004/83/EC (the Qualification Directive) denotes normally or in the generality of cases. Thus the operation of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm and access to such system by the claimant may not, in a given case, amount to protection. Article 7(2) is non-prescriptive in nature. It prescribes neither minima nor maxima. The duty imposed on states to take “reasonable steps” imports the concepts of margin of appreciation and proportionality.

The case emphasises that protection must be effective for the particular individual concerned; a general “willingness” does not amount to sufficient protection.

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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