Non-State Persecution: When Your Persecutor Isn't the Government

Last updated: 5 October 2026

Photo: Fear - Transformer18

This non-state persecution guide explains a simple but often confusing rule of refugee law: persecution does not have to come from the state to count. Many asylum seekers face harm from family members, gangs, armed groups, or whole communities. Moreover, in many countries, the police and courts cannot or will not help. In these cases, the person can still qualify as a refugee under the 1951 Convention. However, the legal test is more complex than for state persecution. The applicant must prove not only the harm but also that the state cannot or will not protect.[1]

This asylum guide covers the main types of non-state persecutors, the "sufficiency of protection" test, and how to address the common "you should have gone to the police" argument. Furthermore, it explains internal relocation and key case law. Finally, it shows how expert witnesses prove that state protection is not available in your country.

The Legal Framework for Non-State Persecution

The 1951 Refugee Convention does not say who has to be the persecutor. It only requires a "well-founded fear of persecution" linked to a Convention ground. Over time, courts have accepted that non-state actors can be persecutors. The key test is whether the state is unable or unwilling to provide protection. If the state fails on either point, the person may qualify as a refugee.[2]

In the UK, the leading case is Horvath v Secretary of State for the Home Department [2001] 1 AC 489. The House of Lords confirmed that the state must provide a "sufficiency of protection." This is a practical, not a perfect, standard. No state can stop every crime. However, the state must have laws, police, and courts that generally work. In the EU, Article 6 of the Qualification Directive (Directive 2011/95/EU) lists three types of "actors of persecution": the state, parties or organisations controlling the state, and non-state actors where the state cannot or will not protect. This rule binds all EU member states.[3]

In the US, the standard is similar. Case law such as Matter of S-A- (BIA 2000) confirms that persecution by private actors qualifies when the government is "unable or unwilling" to protect the applicant. Consequently, the legal framework is broadly the same in the UK, US, and EU, even if the wording differs.

Types of Non-State Persecutors

Non-state persecutors take many forms. Each type raises different evidence challenges. Below are the main categories you will see in asylum claims today.[4]

Family and Clan Members

Family members and clans are among the most common non-state persecutors. They carry out forced marriages, "honour" violence, and FGM. In some countries, clans enforce blood feuds across generations. The victim often cannot turn to police because the family or clan controls the local area. Moreover, police officers may be from the same clan as the attacker.

Armed Groups

Armed groups include the Taliban, Al-Shabaab, ISIS, Boko Haram, and many militias. These groups often control large areas where the state is absent. They carry out killings, kidnappings, and forced recruitment. In Afghanistan, the Taliban has effectively become the state since 2021. Similarly, Al-Shabaab controls parts of Somalia where the government has no presence.

Criminal Gangs

Gangs such as MS-13, Barrio 18, and drug cartels operate across Central America and Mexico. They demand extortion, recruit young men, and kill those who refuse. The state is often unable to protect victims because of corruption, weak institutions, and overwhelmed police forces. Gang persecution claims are especially common in US asylum courts.

Community Actors

Community actors include neighbours, religious leaders, and local groups. They persecute LGBTQ+ people, religious minorities, and those who break local norms. In countries with strong anti-gay laws, community members may beat, rob, or denounce LGBTQ+ individuals. The police may refuse to help or may even join the attack.

The Sufficiency of Protection Test

The "sufficiency of protection" test is central to every non-state persecution claim. It asks two questions. First, is the state willing to protect? Second, is the state able to protect? If the answer to either question is "no," the applicant may qualify as a refugee. The test comes from the UK case Horvath [2001] and is now followed across most common law jurisdictions.[5]

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 the courts, to detect, prosecute and punish offenders.
Lord Clyde, Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 510

Importantly, the test is about the system, not about one single incident. A state can have some weaknesses and still provide sufficient protection. Equally, a state may have good laws on paper but still fail in practice. Consequently, evidence on how laws operate in reality is essential. For instance, does the police actually investigate honour killings? Do prosecutors actually charge the offenders? Do courts actually convict? These are the questions a judge will ask.

"You Should Have Gone to the Police" — Why This Argument Often Fails

UNHCR guidance confirms that asylum seekers do not have to exhaust local remedies first. If seeking help would be "dangerous or futile," the applicant does not need to try. Moreover, courts have confirmed that a single failed attempt to seek police help is often enough to show the state cannot protect.[6]

Internal Relocation and Non-State Actors

Internal relocation is another common argument against non-state persecution claims. The decision-maker says: "Could you not just move to a different part of the country?" This argument can be strong in some cases. However, it fails when the persecutor has national reach or when relocation is not reasonable.[7]

UNHCR and UK case law apply a two-part test. First, is there a place in the country where you would be safe from the persecutor? Second, is it reasonable to expect you to move there? The second question considers age, gender, health, language, family ties, and housing. For example, a single woman with no family cannot easily move to a new city in many traditional societies. Likewise, a gay man cannot hide his identity in a new location. In Januzi v Secretary of State [2006] UKHL 5, the House of Lords confirmed this test applies in the UK.

Non-state persecutors often have nationwide reach. The Taliban controls all of Afghanistan. Gangs in El Salvador have networks across the country. Family honour codes follow victims across borders. Consequently, internal relocation frequently fails in non-state cases. For country-specific background, see our country reports.

Key Case Law on Non-State Persecution

Several landmark cases shape non-state persecution law today. Horvath v Secretary of State [2001] UKHL 6 set the UK "sufficiency of protection" test. The case involved a Roma man from Slovakia who feared skinhead attacks. The court held that Slovakia provided sufficient protection, but the test applies everywhere. Shah and Islam [1999] UKHL 20 involved Pakistani women facing domestic violence and false adultery charges. The court accepted that the state's failure to protect was part of the persecution.[8]

In the US, Matter of S-A-, 22 I&N Dec 1328 (BIA 2000) recognised domestic violence as persecution when the state was unwilling to protect. Later, Matter of A-B- went back and forth on this issue, but the Biden administration restored the principle in 2021. At the EU level, the Qualification Directive codifies the rule. Article 6 lists non-state actors as persecutors when the state cannot or will not protect. Article 7 defines who can provide protection: only the state or parties or organisations controlling a substantial part of its territory.

How Expert Witnesses Address State Protection

Expert witnesses are often decisive in non-state persecution cases. The expert's job is to show the judge how the state actually works in your country. This goes beyond general country reports. A good expert report answers specific questions. Does the police record domestic violence in your region? Do prosecutors charge honour killings? Can a single woman safely live alone in a new city? Do gangs have networks across the country? This detailed evidence defeats the "sufficiency of protection" and "internal relocation" arguments.[9]

Moreover, expert witnesses can explain local social structures. For example, why clan codes override state law in Albania or Somalia. Or why the police cannot touch powerful political families in Pakistan. These insights help judges understand the reality on the ground. To find a qualified country expert for your non-state persecution claim, use our expert witness directory. For wider human rights context, see our human rights coverage.

Conclusion

Non-state persecution is a well-recognised ground for refugee status in the UK, US, and EU. The law does not require the state to be the persecutor. What matters is whether the state can or will provide sufficient protection. Common non-state persecutors include family and clan members, armed groups, criminal gangs, and community actors. The "you should have gone to the police" argument fails where reporting is unsafe or pointless. Internal relocation often fails where the persecutor has national reach. Furthermore, expert witness reports are often decisive in these cases. With strong country evidence and legal argument, non-state persecution claims can succeed.