Suffiency of Protection Flashcards
Horvath [2001] AC 489
Entrenched in law the concept of “sufficiency of protection”
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.
Noune [2000] EWCA Civ 306
Bagdanavicius [2005] 2 AC 668
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]
Kinuthia [2001] EWCA Civ 2100
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.’
McPherson [2001] EWCA Civ 1955
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)
Kinuthia [2002] INLR 133
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…”
- 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.
- In my judgment this appeal must for that reason be allowed…
Tuckey and Parker LLJ agreed with the judgment, Tuckey LJ adding:
- 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.
