Spain: Supreme Court. Chamber for Contentious-Administrative Proceedings, 26 July 2016, DB, Appeal No. 3576/2015
| Country of Decision: | Spain |
| Country of applicant: | Ivory Coast |
| Court name: | Tribunal Supremo. Sala de lo Contencioso |
| Date of decision: | 26-07-2016 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, 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, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
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Race
Description
One of the grounds of persecution specified in the refugee definition according to Article 1A ofthe1951 Refugee Convention. According to the UNHCR: “Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.” According to the Qualification Directive the concept of race includes in particular considerations of colour, descent, or membership of a particular ethnic group. |
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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
Headnote:
The applicant appeals the decision to deny asylum and subsidiary protection, made on 26th August 2014 by the Ministry of Interior, on the grounds of fear of racial discrimination in his country of origin. The appeal is denied after an assessment of the facts and circumstances.
Facts:
The applicant, from Côte d’Ivoire, belongs to the Dioula race and sought asylum on 28th March 2011.
The applicant, who entered Spain on 30th December 2007 has already sought asylum on 8th January 2008 and on 4th March 2008. Both applications were denied.
The applicant states in his account that in 1993/95, the President of Côte d’Ivoire died and the “Ivoirité” law was enforced. From then on, the Guro people began saying that the Dioula people were not true Ivorians, burning the fields of those they did not consider to be Ivorians. Following the death of his father in 2003, he was besieged by Guro forces who burned his field and took his belongings, claiming that he was a foreigner. His mother and brothers remained in Côte d’Ivoire, in the city of Abidjan. He learned that a number of Liberian mercenaries went to his family home and, seeing that their names indicated that they were Dioula, arrested them. The following day, the bodies of his two brothers were found and since then he has heard no news of his mother. He states that if he returns to his country, he runs the risk of being killed for being Dioula.
In April 2011, Ouattara, who is Dioula like the applicant and his family, became President. For this reason it is understood that the allegations put forwards by the applicant “are no longer relevant,” taking into account the increasing stabilisation and consolidation of the peace in Côte d’Ivoire. It was deemed that there is currently no risk to the applicant should he return to his country of origin.
Decision & reasoning:
The contested judicial ruling was made on the basis of a reasonable assessment of the individual concurrent circumstances of the asylum seeker from Côte d’Ivoire, demonstrating that the applicant’s risk profile would not be considered sufficient for the United Nations High Commissioner for Refugees (UNHCR) to substantiate granting refugee status.
The “Interim Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Côte d'Ivoire”, released by the UNHCR on 15th June 2012, states that “Members of ethnic communities from the northern and central parts of the country are generally assumed to be pro-Ouattara. These include the Bambara, Malinké and the northern Manding or Mandé grouping (also known as Dioula).”
The Chamber concludes stating that, “with regard to asylum seekers from Côte d'Ivoire, the Spanish Supreme Court Rulings dated 17th June 2013 (App. 435572012) and 31st October 2014 (App. 407/2014) hold that “any developments in the circumstances in the country of origin from the time at which the request is submitted to when the Court ruling is made must be taken into account. Therefore, we cannot omit the most recent UNHCR report, dated 15th June 2012, which supersedes previous guidelines on Côte d'Ivoire and, in particular, which overrules the appeal for no return, included in the document dated 20th January 2011.”
Therefore, on assessing the circumstances of the applicant detailed in the UNHCR report, it does not appear, given the ethnicity of the applicant and his most recent place of residence, that there are grounds for fear of any of the risks described in Article 10 of Act 12/2009.
The ruling passed by this Chamber on 8th July 2010 (App. 1587/2010), referring to Article 17 on requests for asylum from Côte d'Ivoire, confirms the decision to deny subsidiary protection, stating: “we do not consider that the decision of the Trial Chamber to deny the right to subsidiary protection to Mr……, from Côte d'Ivoire, having affirmed the ruling made by the Ministry of Interior on 17th December 2013 to have been unreasonable or arbitrary, but rather sustain the assessment that the current political situation in the applicant’s country of origin does not justify authorising the applicant to remain in Spain on humanitarian grounds, made in the “Interim Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Côte d'Ivoire”, released by the UNHCR on 15th June 2012.
Outcome:
Appeal denied.
Observations/comments:
This case summary was written by Harry Fathers, GDL student at BPP University.