Luxemburg - Administrative Tribunal, A. and B (Iraq) v. Ministry for Migration and Asylum, N° 43536, 6 November 2019
| Country of Decision: | Luxembourg |
| Country of applicant: | Iraq |
| Court name: | Administrative Tribunal, 1st Chamber |
| Date of decision: | 06-11-2019 |
| Citation: | A. and B (Iraq) v. Ministry for Migration and Asylum, (2019), Luxembourg Administrative Tribunal, 43536 |
Keywords:
| Keywords |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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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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Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
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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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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Health (right to)
Description
Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness. Member States shall also ensure that beneficiaries of refugee or subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such statuses. |
Headnote:
An authority examining an application for international protection by an individual already holding protection status in another Member Statemust check whether the protection of fundamental rights is systematically guaranteed by the country already providing international protection. This especially concerns applicants who are entirely dependent on public aid, and, in particular, on the public health system of the country providing them protection.
Facts:
The applicants are an Iraqi national and his mother. The son, a public servant in Irak, had been shot in the streets, becoming paraplegic. Together with his mother, they fled Iraq for Greece in September 2017, where they were granted international protection. The inflatable boat they had boarded to reach Greece had hit some rocks and taken on water. The applicant, in view of his paraplegia, had to be dragged towards the shore, as a consequence of which he suffered serious injury.
The applicants claimed that the Greek authorities refused to take him into care, and that a Greek doctor advised the applicant to leave Greece if he wanted to be treated. They also argue that the granting of international protection hadn’t changed anything regarding their situation in Greece, as the son did not receive necessary care. In late 2018, they fled to Luxembourg where they applied for international protection on 12 November.
The Ministry for Migration and Asylum rejected their application as inadmissible, considering that the applicant was already benefiting from subsidiary protection in Greece until July 2021. The Minister also estimated that the applicants would not fear for their lives or freedom in Greece, which respected the principle of non-refoulement. They added that medical grounds could not be the basis for international protection in that case.
The applicants appealed against the Ministry’s decision on 6 September 2019, claiming a violation of Article 3 of the European Convention on Human Rights and Article 4 of the Charter of Fundamental Rights of the EU.
Decision & reasoning:
The Administrative Tribunal confirmed that the applicant’s prognosis would be seriously decreased if authorities faied to provide him with necessary medical care. It reiterated that an authority examining a new application for international protection must check whether the protection of fundamental rights is systematically guaranteed by the country already providing international protection. This especially concerns applicants who are entirely dependent on public aid, and, in particular, on the public health system, of the country providing them protection.
The Tribunal, noting that the Minister’s decision relied on the protection status already provided by Greece, considered that the Minister had failed to verify whether the applicant benefited from adequate care, without which he would be finding himself in a situation which would seriously damage his physical or mental health or put him in a state of degradation incompatible with human dignity – and could henceforth be characterised as inhuman or degrading treatment.
The Minister’s decision was therefore flawed, and was annulled by the Administrative Tribunal.
Outcome:
Appeal granted.
Observations/comments:
This summary was written by Sinéad Gough, LLM Student at Queen Mary University of London.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
Other sources:
AIDA, Country Report : Greece, 31 December 2016