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Persecution
Actors of persecution
The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 which transpose the Qualification Directive specify at regulation 3 that the following actors can act as persecutors for the purposes of assessing cases under the Refugee Convention:
The Qualification Directive sets out a minimum definition of what might constitute acts of persecution at Art.9, which has been transposed into the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 as follows:
5. —(1) In deciding whether a person is a refugee an act of persecution must be:
(a) sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms[6]; or
(b) an accumulation of various measures, including a violation of a human right which is sufficiently severe as to affect an individual in a similar manner as specified in (a).
(2) An act of persecution may, for example, take the form of:
(a) an act of physical or mental violence, including an act of sexual violence;
(b) a legal, administrative, police, or judicial measure which in itself is discriminatory or which is implemented in a discriminatory manner;
(c) prosecution or punishment, which is disproportionate or discriminatory;
(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;
(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under regulation 7 [i.e. exclusion clauses].
(3) An act of persecution must be committed for at least one of the reasons in Article 1(A) of the Geneva Convention.
Prosecution and persecution
The UNHCR Handbook, paragraph 57, states that excessive punishment upon conviction imposed for a Convention reason would be persecutory:
‘A person guilty of a common law offence may be liable to excessive punishment, which may amount to persecution within the meaning of the definition.’
Para 59 of the UNHCR Handbook states that a discriminatory application of prosecution may render it persecutory: e.g. directing prosecution for public order offences only against supporters of the political opposition:
"More often, however, it may not be the law but its application that is discriminatory. Prosecution for an offence against 'public order', e.g. for distribution of pamphlets, could for example be a vehicle for the persecution of the individual on the grounds of the political content of the publication."
Persecution
In J v Secretary of State for the Home Department [2006] EWCA Civ 1238 (26 July 2006), the Court of Appeal looked at the proper way to assess the case of a gay asylum seeker. Before concluding that a homosexual could avoid persecution by being discreet in their personal life, it was important to take into account the fact that homosexuals living in a stable relationship will wish to live openly with each other and the "discretion" which they may feel constrained to exercise as the price to pay for the avoidance of punishment will require suppression in respect of many aspects of life that related to or informed by their sexuality: this might involve the near-destruction of their sexual identity.
In EB (Ethiopia) v The Secretary of State for the Home Department [2007] EWCA Civ 809 (31 July 2007), the Court of Appeal found that deprival of nationality, which deprived a national of the opportunity to conduct a business, follow employment and retain the documentation on which the conduct of ordinary life, and had hence lost “the right to have rights”, often depends, could be persecution.
The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 which transpose the Qualification Directive specify at regulation 3 that the following actors can act as persecutors for the purposes of assessing cases under the Refugee Convention:
- the State;
- any party or organisation controlling the State or a substantial part of the territory of the State;
- any non-State actor if it can be demonstrated that the actors mentioned in paragraphs (a) and (b), including any international organisation, are unable or unwilling to provide protection against persecution or serious harm.
The Qualification Directive sets out a minimum definition of what might constitute acts of persecution at Art.9, which has been transposed into the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 as follows:
5. —(1) In deciding whether a person is a refugee an act of persecution must be:
(a) sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms[6]; or
(b) an accumulation of various measures, including a violation of a human right which is sufficiently severe as to affect an individual in a similar manner as specified in (a).
(2) An act of persecution may, for example, take the form of:
(a) an act of physical or mental violence, including an act of sexual violence;
(b) a legal, administrative, police, or judicial measure which in itself is discriminatory or which is implemented in a discriminatory manner;
(c) prosecution or punishment, which is disproportionate or discriminatory;
(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;
(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under regulation 7 [i.e. exclusion clauses].
(3) An act of persecution must be committed for at least one of the reasons in Article 1(A) of the Geneva Convention.
Prosecution and persecution
The UNHCR Handbook, paragraph 57, states that excessive punishment upon conviction imposed for a Convention reason would be persecutory:
‘A person guilty of a common law offence may be liable to excessive punishment, which may amount to persecution within the meaning of the definition.’
Para 59 of the UNHCR Handbook states that a discriminatory application of prosecution may render it persecutory: e.g. directing prosecution for public order offences only against supporters of the political opposition:
"More often, however, it may not be the law but its application that is discriminatory. Prosecution for an offence against 'public order', e.g. for distribution of pamphlets, could for example be a vehicle for the persecution of the individual on the grounds of the political content of the publication."
Persecution
In J v Secretary of State for the Home Department [2006] EWCA Civ 1238 (26 July 2006), the Court of Appeal looked at the proper way to assess the case of a gay asylum seeker. Before concluding that a homosexual could avoid persecution by being discreet in their personal life, it was important to take into account the fact that homosexuals living in a stable relationship will wish to live openly with each other and the "discretion" which they may feel constrained to exercise as the price to pay for the avoidance of punishment will require suppression in respect of many aspects of life that related to or informed by their sexuality: this might involve the near-destruction of their sexual identity.
In EB (Ethiopia) v The Secretary of State for the Home Department [2007] EWCA Civ 809 (31 July 2007), the Court of Appeal found that deprival of nationality, which deprived a national of the opportunity to conduct a business, follow employment and retain the documentation on which the conduct of ordinary life, and had hence lost “the right to have rights”, often depends, could be persecution.
