Hungary - Budapest Court of Public Administration and Labour, 22 September 2017, 5.K.32.170/2017/9
Keywords:
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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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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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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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Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
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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:
The Immigration and Asylum Office unlawfully rejected the claimant’s application for international protection. The court found that the authorities did not objectively assess the evidence and country information provided by the claimant, a Coptic Christian from Egypt. They also failed to correctly interpret the definition of a refugee in accordance with international law and disregarded the special status of the claimant who was an underage applicant.
Facts:
The claimant submitted an application for international protection arguing that he is persecuted in Egypt by Muslim groups, due to him being a member of the Coptic Christian Church. He was subjected to continuous verbal and physical abuse on account of his religion and preaching activities, while he was facing difficulties accessing the labour market for the same reason. He also witnessed the murder of three Christian individuals and testified against the perpetrators. He is not only prosecuted by the police but also the family members of those children. He could not benefit from protection by the authorities.
The authorities rejected the claimant’s application and ordered his deportation to Egypt and a prohibition of entry to Hungary for the next two years. The reasoning behind the decision was the lack of persecution of Coptic Christians since new legislation came into force in Egypt in 2016. The authorities also argued that the verbal abuse by Muslim families does not constitute persecution per se. They further argued that the claimant can return to Egypt without much trouble and could count with the support of his family.
On appeal, the claimant requested the reconsideration of his application and the annulment of the deportation order. The claimant argued that the authorities did not consider his special status as an underage applicant nor his past experiences of abuse and injuries. He contended that the threat of persecution is mainly not from the state and the assessment of future persecution is needed. Finally, there should have been an objective assessment of all the facts, evidence and of the country information available. The information gathered by the Hungarian Embassy in Cairo cannot be considered to be objective as the Egyptian government still cannot and does not know how to protect Coptic Christians against Muslim persecution. The 2016 law mentioned by the authorities does not affect the present persecution as it only relates to the right to build churches.
Decision & reasoning:
First, the Court assessed whether the claimant would satisfy the requirements for refugee status.
The Court referred to Hungarian legislation on the recognition of refugee and subsidiary protection status, including the general prohibition of refoulement, and emphasised that it remains compatible with the international provisions. In this context, it emphasised that one does not need to suffer the abuse themselves to qualify as a refugee. The Court further quoted the UNCHR Handbook to conclude that fear of persecution does not only relate to those who have been directly persecuted but also to people who wish to avoid persecution.
Secondly, the Court found that the authorities did not interpret the provisions in a way that is compatible with international law and there was no proper assessment of the evidence provided by the claimant. The Court also found that the claimant was right to argue that the authorities disregarded his special status as an underage applicant and they also failed to examine the country information provided by the claimant.
Due to the misinterpretation of the law and the procedural flaws in the examination of the case, the authorities came to wrong conclusions regarding the threat of future persecution.
The contested decision was annulled and the Court instrycted the authorities to re-assess the claimant’s application while considering the relevant provisions of international law, as well as submitted evidence and country information.
Outcome:
Appeal granted.
Observations/comments:
This summary was written by Yvette Talas.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Amnesty International Report 2016/17