Case summaries
State protection should be assessed in the applicant’s home area, in the absence of an internal relocation alternative. The Tribunal erred in finding that the fact that the applicant had been raped at her home on 3 separate occasions over a short period by government soldiers had the same effect on assessing future risk as if she had been raped by civilians. The soldiers appeared to act with impunity whereas that would not necessarily be the case for civilians. In assessing future risk past experience was central, as reflected in Art 4(4) of the Qualification Directive and by common sense.
The conditions for asylum seekers in Greece were at the time of the decision not of such a character that it would prevent transferring asylum seekers according to the Dublin Regulation.
This case concerned the definition of an “internal armed conflict.” Relying on international humanitarian law and in particular on the Tadic decision of the International Criminal Tribunal for the former Yugoslavia (ICTY), the CALL defined an “internal armed conflict” as continuous conflict between government authorities and organised armed groups, or between such groups within a State. The Call also found that a ceasefire did not necessarily mean that such a conflict had ended.
A major shift is currently taking place in the rules on burden of proof as regards the granting of international protection. It is up to the Commission and the courts to cooperate in checking the conditions that enable protection to be granted and they should obtain information concerning the country of origin by official means.
This case concerned an appeal against the refusal of international protection to an Imam from Kazakhstan who claimed persecution from state actors because of his religion. The Ministry of Interior (MOI) and the Regional Court considered that persecution had not been established, and that the behaviour of the authorities had not been motivated by the applicant’s religious belief of “pure Islam” (this is a term that is used to distinguish themselves from other Muslims). However, the Supreme Administrative Court (SAC) disagreed and found that due to the specific circumstances of the applicant (an Imam) there was a risk of persecution. The Court also stated that refugee status can involve risk that is motivated by more than one reason, so long as one of those reasons is a persecution ground.
The situation in Iraq is not characterised by an armed conflict within the meaning of Section 60 (7) (2) Residence Act / Art 15 (c) of the Qualification Directive. In any case, there is no sufficient individual risk for returnees.
Non-state actors (private individuals) can be actors of persecution in relation to persons entitled to asylum, as well as actors of serious harm in relation to persons entitled to subsidiary protection.
A Lebanese woman was recognised as a refugee after a death threat by her brother because of her way of life. The court found:
- State protection doesn’t exist against ‘honour killings’ in Lebanon.
- Women who do not accept discrimination and denial of rights, which are based on tradition and social circumstances in their home country, constitute a particular social group in terms of Art. 10 (2) (d) of the Qualification Directive.
- Even a single person can be a non-state actor under Section 60 (1) sentence (4) (c) of the Residence Act (identical to Art 6 (c) of the Qualification Directive).
The applicant, a lesbian from Iran, was recognised as a refugee. The court found:
- It is unreasonable for homosexuals to refrain from sexual activities in order to avoid persecution.
Although there is no systematic persecution of homosexuals in Iran, there is a considerable risk of detection and persecution.
This case confirmed that the Qualification Directive makes a clear distinction between refugees and those in need of subsidiary protection. Further, that Art 28 of the Asylum Procedures Directive, which considers unfounded applications, is not applicable to those who fall within the scope of Art 15(c) of the Qualification Directive.