UK - JA v The Secretary of State for the Home Department
| Country of Decision: | United Kingdom |
| Country of applicant: | Nigeria |
| Court name: | Upper Tribunal (Immigration and Asylum Chamber) |
| Date of decision: | 24-11-2016 |
| Citation: | [2016] UKUT 00560 (IAC) |
Keywords:
| Keywords |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
Headnote:
This case dealt with the extent to which in the case of a child the prospect of discrimination could amount to a real risk of persecution sufficient to found a successful asylum claim in a situation where a comparably placed adult would not be at such a risk.
Facts:
The Appellant was an overstayer, due to be returned to Nigeria with her 7 year old son. Her son had been born and brought up in the UK and suffered from albinism. Whilst the First Tier Tribunal had held that there would be sufficient interference with the Appellant’s Article 8 rights that she should not be returned, it had rejected her claim for asylum for herself and her son, which was confirmed on appeal. This decision was now remitted on further appeal to the Upper Tribunal for reconsideration.
Expert evidence, accepted at the previous hearings, was that there were significant numbers of albinos in Nigeria and that there was a high likelihood of them being subjected to discrimination and a lower likelihood of them suffering potentially life threatening danger due to the widely held belief that their body parts conferred beneficial properties. In essence the question was was this sufficient to rise to the level of a ‘real risk’ of persecution for the purposes of an asylum claim.
Decision & reasoning:
The Tribunal found that the Appellant’s child would be subject to a real risk of persecution if sent to Nigeria based on the following reasoning:
- Albinos could be regarded as a particular social group.
- The Nigerian authorities were not likely to be able to provide effective protection.
- The test to be applied in deciding whether there was a real risk of persecution was the same as for breach of Article 3 ECHR.
- The Tribunal considered the risk of ritual slaughter for being an albino as a remote possibility, not a real risk.
- If the discrimination faced by the child in Nigeria could have particularly adverse effects though, this could amount to persecution. Whilst examples of such discrimination amounting to persecution included prevention of access to employment or education, this was not essential. If children’s rights under the Convention on the Rights of the Child were violated in a sustained or systematic manner this could be sufficient.
- The Convention on the Rights of the Child is relevant to asylum issues; consistent with applicable UNHCR Guidelines it is necessary to have regard to the vulnerability of children and it is clear that a child can be at risk of persecutory harm in circumstances where a comparably placed adult would not be. This does not mean that children have additional rights under the Refugee Convention; rather the definition of persecution should be interpreted in accordance with the distinctive rights that children possess.
- Whilst the starting point of the assessment is the particular vulnerability of children, the Tribunal stressed the need to consider the personal perspective of the particular child and the particular facts of the case. In this case the child had been born and brought up in the UK where there was no general antipathy towards or discrimination against albinos. The Tribunal stated that the effect on him of such discrimination would therefore be entirely new, and much more serious than if he had been brought up in Nigeria.
- This also undermined the Government’s argument that a finding in favour of the Appellant and her child would open the floodgates to all the albinos in Nigeria founding asylum claims on the same basis. The Tribunal stressed that this was not in fact a test case for such a scenario, because the individual position, age and background of each child is what had to be considered, and even in this case the Tribunal admitted that this was a very close run case and that it was not usual to conclude a real risk of persecution without more.
Outcome:
The Appellant’s appeal was allowed on asylum grounds/humanitarian grounds.
Observations/comments:
This case was written by Jonathan Thomas, LLM at Queen Mary University, London.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Mubilanzila Mayeka and Kaniki Mitunga v Belgium, Application No. 13178/03 |
| UK - E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66, [2009] 1 AC 536 |
Other sources:
UNHCR Guidelines on Child Asylum Claims