Case summaries

The Respondent erred if, in a procedure on the extension of subsidiary protection, it failed to examine the threats to safety for repariated Afghan nationals. The Respondent,within the context of finding the facts, had completely failed to examine evidence of the existence of serious harm within the meaning of Section 2(f)(2) of the Asylum Act (torture or inhuman or degrading treatment or punishment), and thus failed to address the question of whether, in the event of the Appellant returning (as a person who had left Afghanistan) to his country of origin, he would not also be at risk of this form of serious harm. The Respondent took no evidence in respect of this, which is contrary to the provisions of Section13a of the Asylum Act. Moreover, its actions were thus contrary to its own established practice, whereby, in (standard) proceedings on applications for international protection, it routinely ascertains the behaviour of state authorities in relation to unsuccessful asylum applicants or other groups of repatriated persons returning to their country of origin. 

In order for subsidiary protection to be provided, the law requires not just a fear but a well-founded fear. This means that a fear of persecution must be real and not fictional. If the genuine nature of an appellant’s fear were to be accepted on the basis of an outline provided to the Respondent in proceedings to extend subsidiary protection, it would lead to a situation where almost all nationals of countries in which any kind of conflict was taking place - even a local one not directly affecting most of the population - would have to be regarded, without further grounds for acceptance, as persons in respect of whom there were serious grounds for believing that they would be exposed to a real risk of serious harm in the event of returning to the country of origin.

This was a decision on appeal against detention under Articles 76(3) et seq of Law 3386/2005 and 30(2) of Law 3907/2011. It concerned an act to halt an asylum application, Non-attendance at the personal interview at the primary examination of the application was deemed to be tacit withdrawal of the application to be granted asylum. The Applicant was arrested due to the absence of legal documentation and decisions to detain and return were issued.  Mental illness associated with the return process was considered.

A judicial decision lifted the detention order so as to not worsen the health condition of the Applicant. Imposition of restrictions and a deadline for leaving Greece were discussed.

Dismissal of the Appellant’s claim that the findings of fact were incorrect beause the Respondent had failed to examine relevant grounds for assessing the  existence of serious harm from the perspectives listed under Section 2(f)(1) and (2) of the Asylum Act, and specifically the risk of execution.

As the Appellant did not claim, either during the administrative or the judicial proceedings (before the Regional Court), that criminal proeedings were under way against him in his country of origin, or that he faced the threat of execution, torture, inhuman or degrading treatment, the Respondent could not be criticised for approaching the hearing of evidence in relation to his claims concerning the bad security situation in his country of origin, and to that end had focused on assessing the security situation in the country of origin and had not dealt with the risk of execution in the country of origin.

This case concerns a child asylum applicant who had his appeal against refusal of asylum considered after he had turned 18, and thus had become an adult. He complained that this breached Article 39 of the Procedures Directive (effective remedy).

In the case of the first Applicant, the exceptional personal circumstances dictate round the clock highly qualified medical care, which is provided by health care institutions in Slovenia, while home care is provided by the second Applicant. If such a sick person were forced to leave the stable conditions in Slovenia and start living in a collective centre in BiH, the first Applicant could suffer inhuman or degrading treatment due to inappropriate health care, which would represent serious harm, which in turn justifies subsidiary protection in Slovenia.

In the event that the second Applicant was returned to the country of origin, she would be separated from the first Applicant (i.e. her family) contrary to the fundamental principle of family unity. Apart from this, in the event of returning to BiH or to a collective centre in BiH, it would be reasonable to believe that, as a young Roma female without a family and means for survival, she would also be subjected to inhuman and degrading treatment due to the discrimination against the Roma population.

The Minister based a subsidiary protection decision and deportation order examination on the premise that the Applicant was a Tanzanian national based on records that were provided by the UK Border Agency to that effect, in circumstances where the Applicant claimed that he was Somali; that the Tanzanian identity was false; and he claimed that two language reports which were supportive of his claim of Somali nationality and submitted in a separate application for a subsequent asylum claim should have been considered by the Minister in the making of his subsidiary protection and deportation decisions.

The High Court held that the language reports were added to the decision making process by virtue of being referenced in (but not attached to) correspondence concerning the subsidiary protection application and representations against deportation; that they were not considered by the Minister; and that the failure to do so breached the Applicant’s right to a fresh consideration of his credibility, and the Minister’s obligation to consider relevant facts.

Consequently the subsidiary protection decision and the deportation were quashed and remitted.

The risk of arranged marriage is widespread in Afghanistan, particularly for underage girls, which means that it may constitute grounds for refugee status for women.  
In the examination of Article 8 of Directive 2004/83/EC, it is important to take into account the fact that family members may only return together with their children and spouses on the grounds of the protection of marriage and family. 

The issue in this case was “complicity” – the Court analysed the facts of the applicant’s involvement in a violent paramilitary force in Iran to determine whether he was complicit in crimes against humanity, so as to be excluded from international protection. 

It must be noted that the Applicant’s occupation as a pharmacist meant that according to the country of origin information, he could be a target group for the country`s security forces if they suspected that assistance was being provided to the insurgents. This was considered to constitute the Applicant`s imputed political opinion to be taken into consideration in light of the right to asylum, in other words, circumstances to be considered pursuant to the Geneva Convention.