NA and VA (protection: Article 7(2) Qualification Directive) India

NA and VA (protection: Article 7(2) Qualification Directive) India [2015] UKUT 432 (IAC)

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.

While it will be necessary to examine certain aspects of the determination of the FtT in a little detail in due course, it suffices to record at this juncture that, in substance, the dismissal of the Appellants� appeals entailed an endorsement of the main elements of the Secretary of State�s decision.

The appeal to this Tribunal has two main dimensions. The first involves a question of principle relating to the correct construction of Article 7 of the Qualification Directive. The second is appeal specific, concerning certain aspects of the decision of the FtT.

Council Directive 2004/83/EC prescribes certain minimum standards for the qualification and status of third country nationals, or stateless persons, as refugees or otherwise in need of international protection. The key provision of the Directive in the context of this appeal is Article 7 which, under the rubric �Actors of Protection�, provides