ECtHR - S.A v. The Netherlands, Application n° 49773/15, 2 June 2020
| Country of applicant: | Sudan |
| Court name: | European Court of Human Rights (Fourth Section) |
| Date of decision: | 02-06-2020 |
| Citation: | ECtHR, 2 June 2020, S.A v. The Netherlands, n° 49773/15 |
| Additional citation: | ECLI:CE:ECHR:2020:0602JUD004977315 |
Keywords:
| Keywords |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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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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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
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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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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
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Access to the labour market
Description
Per Art 26 QD: Member States must authorise beneficiaries of international protection status to engage in employed or self-employed activities subject to rules generally applicable to the profession and to the public service immediately after the status has been granted. In the case of refugee status, Member States must ensure activities such as employment-related education opportunities for adults, vocational training and practical workplace experience are offered under equivalent conditions as nationals. In the case of subsidiary protection the same may be offered under conditions to be decided by the Member States. Per Art. 11 RCD: "Member States shall determine a period of time, starting from the date on which an application for asylum was lodged, during which an applicant shall not have access to the labour market. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant." |
Headnote:
National authorities are best placed to assess the credibility of asylum claimants.
The ill-treatment of people of non-Arab ethnic origin in Sudan is not systematic. Therefore, when the personal circumstances of an applicant that may create a risk of persecution are insufficiently substantiated, the applicant’s removal to Sudan will not give rise to a violation of Article 3 of the Convention.
Facts:
The applicant’s three requests for international protection were rejected because his statements were found lacking credibility, in particular those regarding his country of origin.
The applicant had entered the Netherlands on a valid Chadian passport, which he declared he had obtained through bribery. Based on the findings of a language analysis, the State Secretary doubted his claim that he originated from Darfur.
The State Secretary considered that there was nothing in the applicant’s individual profile to suggest that he would attract the negative attention of the Sudanese authorities as a political dissident or a person suspected of having ties with armed rebels in Darfur.
Relying on Article 3 (prohibition of inhuman or degrading treatment) and Article 13 (right to an effective remedy), the applicant complains before the ECtHR that if removed to Sudan he would be at risk of forced recruitment, persecution because he belonged to a non-Arab ethnic group from Darfur, and more generally, on account of the humanitarian situation in Sudan as a result of the conflict in Darfur.
Decision & reasoning:
First, the Court points out that the assessment of the risk of an Article 3 infringement must focus on the foreseeable consequences of the applicant’s removal to the country of destination, in the light of the general situation there and of his or her personal circumstances.
The applicant did not dispute that the general situation in Sudan was not such as to entail, in itself, a risk of ill-treatment. Therefore, the examination focuses on the applicant’s personal circumstances.
The Court then goes on to note that the State Secretary found that the applicant had made implausible statements and had not satisfactorily established that he originated from the Sudanese part of Darfur. The Court reiterates that the national authorities are best placed to assess the credibility of asylum claimants and states that it sees no grounds to depart from the conclusions drawn by the domestic authorities as to the lack of credibility of the applicant’s asylum statements.
The Court observes that the situation for people of non-Arab ethnic origin is not so serious that it must be concluded that they are at risk of persecution or serious harm in Khartoum solely on the grounds of their ethnicity.
As to the alleged risks of forced recruitment and the risk of ill-treatment because of involvement in political opposition groups, the Court argues that these are insufficiently substantiated.
The Court concludes that the applicant’s removal to Sudan would not give rise to a violation of Article 3 of the Convention.
Finally, the Court noted that the applicant had had ample opportunity to present his case and challenge decisions at a domestic level.
Outcome:
No violation of Articles 3 and 13 ECHR.
Observations/comments:
This summary was written by Roel Stynen, Law student at Ghent University.
Relevant International and European Legislation:
Cited Cases:
Other sources:
Danish Immigration Service and United Kingdom Home Office, “Situation of Persons from Darfur, Southern Kordofan and Blue Nile in Khartoum”, August 2016
United Kingdom Home Office, “Sudan: Non-Arab Darfuris”, August 2017
United Kingdom Home Office, “Report of a fact-finding mission to Khartoum, Sudan; conducted between 10 and 17 August 2018”, November 2018
United Kingdom Home Office, “Sudan: Non-Arab Darfuris”, November 2019
Asylum Research Centre, “Sudan: Query Response, The situation in Khartoum and Omdurman – An update”, 13 September 2018