Case summaries

The case concerned an application for judicial review of the decisions made on behalf of the Secretary of State to transfer the applicants to Malta, on the basis that such jurisdiction was the proper place for considering the applicants’ asylum claims. The applicants argued that such transfer would violate their rights under Article 18 of the Charter of the Fundamental Rights of the European Union (EU Charter) to have their asylum application determined within a reasonable time and on the basis of a fair procedure, as the Maltese asylum system had several shortcomings and contains procedures that are illusory or too slow. Dismissing the application, the Tribunal concluded that there was no evidence to support the argument that the applicants’ Article 18 rights would be violated if they were transferred to Malta. 

The High Court in this case focused on two questions: 1) whether the Refugee Appeals Tribunal’s (RAT) finding of a lack of a Convention nexus was valid, given the evidence before it, and 2) whether the RAT’s finding that the persecution faced by the applicant in the past does not amount to “compelling reasons” meriting a grant of refugee status was valid. The Court agreed with the Tribunal Member on the second question, finding that she had appropriately evaluated the applicant’s circumstances in light of the relevant guidelines, case law and evidence in rejecting the applicant’s claim for protection based on past persecution. However, the Court ultimately quashed the RAT’s decision in its findings on the first question, deducing that the RAT had failed to address all relevant aspects of the country of origin information that had been submitted by the applicant.

The applicant is a Nigerian gay man whose credibility was questioned by the asylum authority (OIN) and his application was rejected. The court, however, found that the applicant’s statements were coherent and credible. The court found also that the psychological examination of the applicant’s sexual orientation cannot be accepted because it is humiliating and violates the right to private life.

Having restored credibility the court quashed the administrative decision and ordered a new procedure where the situation of the applicant and other gay men in Nigeria must be assessed.    

The Italian consolidated Law on Migration (Art. 5(6) n. 286/1998) requires humanitarian protection to be given where a person is in a situation of vulnerability. Such a situation occurs when the applicant’s constitutional and international fundamental rights, such as health and nutrition, are compromised.

An Article 3 compliant assessment requires a full and ex nunc evaluation of a claim.  Where the State is made aware of facts that could expose an applicant to an individual risk of ill-treatment, regardless of whether the applicant chooses to rely on such facts, it is obliged to assess this risk ex proprio motu. 

The decision of denying asylum is disproportionate, as the fact that the acts of persecution are indiscriminate and affect a large majority of the population do not exclude the application of the 1951 Convention when the necessary elements of the provision are present. The reports of UNHCR were also noted in the Court’s assessment, particularly regarding the risk groups that the organisation has characterised.

In this case, the European Court of Human Rights (ECtHR) revisited the conditions of Mogadishu, Somalia as it relates to an alleged violation of Article 3 of the European Convention of Human Rights (ECHR).

In the specific case, the ECtHR held that:

1) While the general conditions of Mogadisuh remain serious and fragile, objective reports support the finding that such conditions are not sufficient to find a violation of Article 3 of the ECHR; and

2) While the ECtHR acknowledged that the applicant in the present case faces a different threat as a woman and that several objective reports described the serious and widespread sexual and gender-based violence in the country, the Court was concerned with the applicant’s credibility.

The assigned political belief of an individual, his desertion or avoiding being drafted in the army are sufficient to grant a refugee status to an individual, if there is a connection between the reasons for persecution and the acts of persecution in line with Article 1.A of the Geneva Convention 1951 in a situation of an armed conflict. 

This Case examines the refusal to grant refugee status to a Nepalese national. The Tribunal failed to provide clear, cogent reasoning for the decision. Documentation and explanations provided by the Applicant were not included in the decision. Unreasonable assumptions were made by the Tribunal including: as the Applicant’s wife, children and brother were safely residing in the country of origin, this inferred that the Applicant could do the same; since the applicant spent 6 years living safely in India, he could continue to live there safely. The High Court criticised the procedural approach by the Tribunal and the lack of coherent reasoning provided. The High Court granted leave and quashed the Tribunal’s decision.

There is a real risk that by virtue of his predicted employment in the media sector the Appellant will be persecuted for political opinion and/or that a breach of his rights under Articles 2 and 3 ECHR will occur.

The Appellant is not to be denied refugee status on the ground that it would be open to him to seek to engage in employment other than in the journalistic or media sector.