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Protection from non state persecution
The issue of the availability of protection usually in non-state persecution cases. In Horvath, the House of Lords held that persecution by non-state actors is only persecution within the meaning of the Refugee Convention if the state is unable to provide a system of protection.
The most practical test was stated in the House of Lords by Lord Lloyd, actually formulated by Stuart-Smith LJ in the Court of Appeal (paragraphs 20, 22, & 44 of Stuart-Smith's judgment):
"... the state may be unwilling to afford protection to a certain class of its citizens if there is widespread and systemic indifference to their plight on the part of the law enforcement agencies such as the police and the courts..
...No state can guarantee the safety of its citizens. And to say that the protection must be effective suggests it must succeed in preventing attacks, which is something that cannot be achieved. Equally to say that the protection must be sufficient, begs the question, sufficient for what? 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. It must be remembered that inefficiency and incompetence is not the same as unwillingness, unless it is extreme and widespread. 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...
…In some cases where individuals are targeted by terrorists or dissidents it may be possible for the state to provide special police protection, for example by an armed guard or the provision of a new identity in a different part of the territory. But these attacks are unpredictable as to victims, time and location, and it is clear that the only form of protection which can be provided is in the form of deterrence through detection, prosecution, convictions and sentencing of criminals."
This approach is supported in the Qualification Directive, as transposed in the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 at regulations 3 and 4 read together:
‘3. In deciding whether a person is a refugee or a person eligible for humanitarian protection, persecution or serious harm can be committed by:
(a) the State;
(b) any party or organisation controlling the State or a substantial part of the territory of the State;
(c) 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.
‘4. —(1) In deciding whether a person is a refugee or a person eligible for humanitarian protection, protection from persecution or serious harm can be provided by:
(a) the State; or
(b) any party or organisation, including any international organisation, controlling the State or a substantial part of the territory of the State.
(2) Protection shall be regarded as generally provided when the actors mentioned in paragraph (1)(a) and (b) take reasonable steps to prevent the persecution or suffering of serious harm by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the person mentioned in paragraph (1) has access to such protection.
(3) In deciding whether a person is a refugee or a person eligible for humanitarian protection the Secretary of State may assess whether an international organisation controls a State or a substantial part of its territory and provides protection as described in paragraph (2).’
Both tests focus on whether the individual can avail themselves of the protection of their country.
Protection: internal relocation
Situations arise where an individual may face persecution in a particular part of their country of origin but will be expected to relocate to a different part of their country where they can live in safety. This usually arises in non-state persecution cases, as it is difficult to imagine where a person might be able to relocate within the territory of a state while fearing persecution by that state. In Januzi v SSHD [2006] UKHL 5, the House of Lords held that there is, however, no presumption that internal relocation is not viable in state persecution cases.
The immigration rules refer to the concept of internal relocation and transpose the requirements of the Qualification Directive at rule 339O:
(i) The Secretary of State will not make:
(a) a grant of asylum if in part of the country of origin a person would not have a well founded fear of being persecuted, and the person can reasonably be expected to stay in that part of the country;
or
(b) a grant of humanitarian protection if in part of the country of return a person would not face a real risk of suffering serious harm, and the person can reasonably be expected to stay in that part of the country.
(ii) In examining whether a part of the country of origin or country of return meets the requirements in (i) the Secretary of State, when making his decision on whether to grant asylum or humanitarian protection, will have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the person.
(iii) (i) applies notwithstanding technical obstacles to return to the country of origin or country of return’
The most practical test was stated in the House of Lords by Lord Lloyd, actually formulated by Stuart-Smith LJ in the Court of Appeal (paragraphs 20, 22, & 44 of Stuart-Smith's judgment):
"... the state may be unwilling to afford protection to a certain class of its citizens if there is widespread and systemic indifference to their plight on the part of the law enforcement agencies such as the police and the courts..
...No state can guarantee the safety of its citizens. And to say that the protection must be effective suggests it must succeed in preventing attacks, which is something that cannot be achieved. Equally to say that the protection must be sufficient, begs the question, sufficient for what? 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. It must be remembered that inefficiency and incompetence is not the same as unwillingness, unless it is extreme and widespread. 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...
…In some cases where individuals are targeted by terrorists or dissidents it may be possible for the state to provide special police protection, for example by an armed guard or the provision of a new identity in a different part of the territory. But these attacks are unpredictable as to victims, time and location, and it is clear that the only form of protection which can be provided is in the form of deterrence through detection, prosecution, convictions and sentencing of criminals."
This approach is supported in the Qualification Directive, as transposed in the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 at regulations 3 and 4 read together:
‘3. In deciding whether a person is a refugee or a person eligible for humanitarian protection, persecution or serious harm can be committed by:
(a) the State;
(b) any party or organisation controlling the State or a substantial part of the territory of the State;
(c) 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.
‘4. —(1) In deciding whether a person is a refugee or a person eligible for humanitarian protection, protection from persecution or serious harm can be provided by:
(a) the State; or
(b) any party or organisation, including any international organisation, controlling the State or a substantial part of the territory of the State.
(2) Protection shall be regarded as generally provided when the actors mentioned in paragraph (1)(a) and (b) take reasonable steps to prevent the persecution or suffering of serious harm by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the person mentioned in paragraph (1) has access to such protection.
(3) In deciding whether a person is a refugee or a person eligible for humanitarian protection the Secretary of State may assess whether an international organisation controls a State or a substantial part of its territory and provides protection as described in paragraph (2).’
Both tests focus on whether the individual can avail themselves of the protection of their country.
Protection: internal relocation
Situations arise where an individual may face persecution in a particular part of their country of origin but will be expected to relocate to a different part of their country where they can live in safety. This usually arises in non-state persecution cases, as it is difficult to imagine where a person might be able to relocate within the territory of a state while fearing persecution by that state. In Januzi v SSHD [2006] UKHL 5, the House of Lords held that there is, however, no presumption that internal relocation is not viable in state persecution cases.
The immigration rules refer to the concept of internal relocation and transpose the requirements of the Qualification Directive at rule 339O:
(i) The Secretary of State will not make:
(a) a grant of asylum if in part of the country of origin a person would not have a well founded fear of being persecuted, and the person can reasonably be expected to stay in that part of the country;
or
(b) a grant of humanitarian protection if in part of the country of return a person would not face a real risk of suffering serious harm, and the person can reasonably be expected to stay in that part of the country.
(ii) In examining whether a part of the country of origin or country of return meets the requirements in (i) the Secretary of State, when making his decision on whether to grant asylum or humanitarian protection, will have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the person.
(iii) (i) applies notwithstanding technical obstacles to return to the country of origin or country of return’
