Case summaries

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:

1. 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.
2. 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.

The High Administrative Court decided that refugee status had been unlawfully granted to a Chechen. Regardless of the issue of whether Chechens were persecuted as a group, refugee status was excluded since the applicant had access to internal protection in other parts of the Russian Federation.

The accusation of a breach of the individual's right to information about the rules and procedures of the refugee status proceedings and about the rights and obligations of the applicant was unfounded, as the application form for refugee status contained this information and was signed by the individual in question to acknowledge that she had been duly informed.

For refugee status to be recognised on grounds of a risk of persecution by non-state actors, it needs to be shown that this risk is linked to persecution grounds listed in the Convention.

'Women subject to domestic violence' do not constitute a social group. The assessment of whether women in Russia constitute a social group within the meaning of the Convention requires an assessment of the actual situation in the country of origin.

The House of Lords considered a number of issues arising out of the proposed deportation of three foreign nationals on the basis that each was a danger to the national security of the United Kingdom. The Court made three particularly relevant findings: (1) that Article 1F(c) of the 1951 Refugee Convention could be invoked to exclude an individual from the provisions of the Convention on the basis of acts committed after the applicant was recognised as a refugee; (2) Diplomatic assurances as to the treatment of an individual were relevant to assessing how an applicant would be treated upon return to their home State, though their assessment was a matter of fact, and; (3) relying on evidence obtained by torture in a criminal trial did not, as a matter of law, always amount to a flagrant denial of the right to a fair trial guaranteed by Article 6 ECHR.

1. The denial of citizenship may represent a severe violation of basic human rights according to Art. 9.1 (a) of the Qualification Directive.
2. In assessing the severity of the violation of rights caused by the denial of citizenship, under Art. 4.3 of the Qualification Directive, the individual situation and personal circumstances of the person concerned have to be taken into account.
3. A person is stateless according to Section 3 (1) of the Asylum Procedure Act, if no state considers him/her as a national under its own law, i.e. a de jure stateless person. For de-facto stateless persons, therefore, a threat of persecution has to be established with reference to the state of their de jure nationality.
4. The habitual residence of a stateless person under Section 3 (1) of the Asylum Procedure Act does not need to be lawful. It is sufficient if the focus of the stateless person’s life is in the country, and therefore the stateless person did not merely spend a short time there, and the competent authorities did not initiate measures to terminate his/her residence.

The Ministry of Interior is obliged to consider whether the conditions for granting subsidiary protection are fulfilled even when the application for international protection is dismissed as manifestly unfounded when it is clear that the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his or her removal, and if the applicant has failed without reasonable cause to make his or her application earlier, having had opportunity to do so.

A permit to stay, granted on humanitarian grounds to a foreigner whose application for asylum has been rejected until such time as it becomes feasible for him to go abroad, is of a temporary nature. It is possible to extend the validity of such a permit if there are exceptional circumstances relating to the prevailing situation in the foreigner's country of origin and/or relating to his personal circumstances. When an application to extend a permit to stay is submitted, the Administration should examine any exceptional grounds that may have been put forward.

The Kenyan applicant was a potential victim of female genital mutilation (FGM) and she faced forced marriage upon return. The Court stated that even if there was a risk of persecution in case of a return to the country of origin, the applicant could reasonably be expected to relocate internally as it was feasible in the circumstances.

The Ministry of Interior rejected the asylum claim of an Algerian woman who requested protection based on gender persecution by a non-state agent. The High National Court, on appeal, ruled that gender is considered as a “particular social group” and that it is not necessary that the persecution is carried out by state actors but also by non-state actors under certain circumstances. The applicant was granted Refugee status.