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

Last updated: 5 October 2026

Photo: Secret prisons - Al Jazeera English

Refugee law was historically focused on state persecution. However, modern jurisprudence has firmly accepted that persecution can come from non-state actors. Cartels, gangs, militias, families, terrorist groups, and traffickers can all be persecutors for asylum purposes. The key question is whether the state is willing and able to protect against them. This non-state persecution guide explains how the legal test works, when non-state persecution qualifies, and how to build cases involving private actors as persecutors.[1]

The evidence base draws on the UNHCR Handbook, the EU Qualification Directive Article 6, UK Court of Appeal jurisprudence (notably Horvath [2000]), US BIA decisions, Canadian Supreme Court doctrine, and academic commentary on non-state persecution.

The Legal Framework

The 1951 Refugee Convention does not specify who must be the persecutor. UNHCR Handbook paragraph 65 makes clear that persecution can come from "sections of the population that do not respect the standards established by the laws of the country concerned." The EU Qualification Directive Article 6 explicitly lists non-state actors as possible persecutors. UK, Canadian, and Australian courts have all confirmed the same approach.[2]

The US has taken a similar view, though with sometimes more restrictive case law on PSG analysis. Matter of A-B- (2018) and its subsequent treatment have made non-state persecution claims harder in some contexts, particularly domestic violence and gang-related cases. However, the underlying principle that non-state actors can persecute remains.

Who Are Non-State Persecutors?

Non-state persecutors include any actor that the state cannot or will not control. Common categories appear in case law worldwide.[3]

The State Protection Test

The critical question in non-state persecution cases is whether the state can and will protect against the persecutor. The UK House of Lords in Horvath v SSHD [2000] UKHL 37 established the modern test. The test asks whether the state has provided "reasonable protection" — not whether it has eliminated risk entirely.[4]

Proving State Protection Failure

Decision-makers usually start with a presumption that the state can protect its nationals. The applicant must produce evidence that rebuts this presumption. The strongest evidence usually includes the following.[5]

• Documented complaints to police that produced no result.
• Country expert reports describing systemic state protection failure for the applicant's profile.
• Country of origin information — UNHCR, HRW, Amnesty International, US State Department reports.
• Patterns of impunity — statistics on conviction rates for the type of crime feared.
• State complicity evidence — police corruption, sectarian capture of institutions.
• Failed previous attempts at relocation within country.

Internal Flight in Non-State Cases

Internal flight (or "internal protection alternative") is often raised in non-state persecution cases. The home country may have one region with effective state control and another without. The question is whether the applicant can relocate safely to the protected region. UNHCR Guidelines No. 4 (2003) set out the assessment framework.[6]

For non-state persecution cases, internal flight is often not viable because:

• Cartels and gangs operate trans-regionally.
• Family pursuit extends across regions through clan networks.
• Religious vigilantes have national reach in some countries.
• The "protected" region may be hostile to the applicant's identity.

Common Non-State Persecution Case Types

Gender-Based Violence

Domestic violence, forced marriage, FGM, and honour violence are all forms of non-state persecution. The leading UK authority is Islam and Shah [1999] UKHL 20. The leading US authority (currently contested) is Matter of A-B- (2018, 2021 vacatur). Decision-makers must assess whether the state provides reasonable protection against gender-based violence in the country of origin.[7]

LGBTQ+ Persecution by Family or Community

Where police themselves persecute LGBTQ+ people (as in Azerbaijan), state protection failure is obvious. Where police are absent or unwilling to act against family violence (as in many other countries), the unwilling-to-protect limb applies. The HJ (Iran) principle still applies — no requirement to conceal.

Gang and Cartel Persecution

Northern Triangle cases (Honduras, El Salvador, Guatemala) and Mexican cartel cases routinely involve non-state persecution combined with state inability to protect. See our companion analyses of cartel territorial control and Northern Triangle impunity.

Refugee law has long recognised that persecution can come from non-state actors. The 1951 Convention applies whenever a state fails to provide adequate protection against private harm grounded in a Convention reason. The test is whether the protection is real and effective — not whether the state has formally legislated against the harm.
UK House of Lords, Horvath v SSHD [2000] UKHL 37

Practical Steps for Non-State Persecution Cases

1. Identify the non-state persecutor specifically. "My ex-husband and his brothers from clan X" is stronger than "a man I knew."
2. Document attempts to seek state protection. Police reports, even where ignored. Lawyer correspondence. Witness statements.
3. Build country expert evidence on state protection failure. See our country expert reports guide.
4. Address internal flight specifically. Show why relocation would not work for your profile.
5. Connect the persecution to a Convention ground. Race, religion, nationality, PSG, or political opinion must be the reason for the harm.
6. Anticipate "private dispute" arguments. Tribunals sometimes treat family or gang violence as personal rather than Convention-related. Pre-empt this with framing.

Conclusion

Non-state persecution is firmly within refugee law. Cartels, gangs, militias, families, terrorist groups, and traffickers can all be persecutors. The decisive question is whether the state can and will provide reasonable protection. When the state is unable or unwilling, refugee status is available.

For applicants and representatives, the practical task is to document both the harm from the non-state actor and the state's failure to protect. Country expert reports and country information evidence are usually decisive. When this work is done well, the legal framework supports protection — even where the state itself is not the direct persecutor.