Case summaries
The situation which currently prevails in the Republic of Chechnya does not amount to generalised violence resulting from a situation of internal or international armed conflict.
This case concerned the assessment of "group" persecution against Arab Sunnites in Iraq. In order to establish the existence of group persecution it is necessary to at least approximately determine the number of acts of persecution and to link them to the entire group of persons affected by that persecution ( "density of persecution"). Acts of persecution not related to the characteristics relevant to asylum (reasons for persecution) are not to be included.
While Kosovan legislation prohibits any discrimination based on sexual orientation since 2004, persons who publicly acknowledge their homosexuality and demonstrate it in their external behavior regularly face de facto harassment and discrimination, without being able to avail themselves of the protection of the authorities. They constitute a particular social group.
The Court examined the issue of when the refusal of the applicant’s State of nationality to provide documents to allow her to be readmitted to that State represents a denial of the applicant’s nationality and, consequently, provides a basis for a claim for asylum. The Court held that the deprivation of nationality can constitute persecution. It further held that concepts of de jure and de facto nationality, applied by the Tribunal in the appeal, were likely to obscure the question of whether the applicant had a well-founded fear of persecution. It held that the correct standard of proof in respect of the issue of re-documentation will usually be the balance of probabilities rather than a reasonable degree of likelihood. It further held that, to prove her case, the applicant was under a duty to take all reasonable steps in good faith to obtain documents from the authorities of her State of nationality.
The applicant lodged an appeal before the High National Court against the decision of the Ministry of Interior to refuse granting refugee status. The refusal was based on the application of an exclusion clause due to the applicant’s alleged membership of a terrorist group and for having committed serious crimes.
It was discussed whether this exclusion clause had been applied lawfully and also if, alternatively, the applicant could be authorised to stay in Spain for humanitarian reasons since, if he was expulsed, there was a risk of suffering inhuman or degrading treatment
The Court replaced the decision of the OIN to allow the Applicant to remain on non-refoulement grounds (i.e. tolerated status), with a decision to grant the Applicant subsidiary protection status on the grounds that he would be at risk of serious harm on return to his home country (indiscriminate violence).
The case concerned an application for international protection by an Iraqi national. The application was dismissed on the grounds of a failure to establish that his life or person was threatened by reason of indiscriminate violence. The applicant failed to demonstrate individual risk.
Children who were born in France and who claim a fear of persecution because they refuse to be subjected to female genital mutilation (FGM) in their country of origin fall within the scope of subsidiary protection. The effective implementation of this protection requires that the child is not separated from her mother and that the mother benefits from the same protection.
This case concerned the assessment of religious persecution. The court found that:
- Even under the Qualification Directive not every restriction of religious freedom results in persecution within the meaning of asylum law. Whether a measure is tied to religion as a reason for persecution is found within Art 10 of the Qualification Directive; but what right is protected, and to what extent, proceeds from Art 9 of the Qualification Directive.
- Interference in a core area of religious freedom represents a severe violation of a basic human right within the meaning of Art 9.1 of the Qualification Directive. Whether, and under what conditions, religious activity in public is also included, is a matter of uncertainty under Community law that must ultimately be clarified by the European Court of Justice.