Court of The Hague, 19 March 2018, NL 17.11921
| Country of Domestic Proceedings: | Netherlands |
| Country of applicant: | Iraq |
| Court name: | Court of The Hague (Hearing location Zwolle), (H.T. Masmeyer) |
| Date of decision: | 19-03-2018 |
| Citation: | NL 17.11921 |
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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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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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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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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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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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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Sexual orientation
Description
"Sexual orientation refers to: ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender’." According to Article 10(1)(d) of the Qualification Directive: “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 Article” |
Headnote:
In assessing the credibility of a sexual orientation-related claim, personal circumstances have to be taken into account. That a person is not able to elaborate on his awareness and acceptance of his sexual orientation, is not sufficient to conclude that the applicant’s story lacks credibility, when the personal circumstances that explain this inability are considered credible.
Facts:
The applicant is an Iraqi man. When he was thirteen, he was caught committing sexual acts with a boy. He was subsequently mistreated by his father and family for years. This caused him to renounce the Islamic faith and become an atheist. His request for international protection (Vreemdelingenwet, art. 28) was refused by the State Secretary of Justice and Security, who acknowledged that homosexuality is not accepted and punishable in Iraq, but questioned the credibility of the man’s claim that his sexual orientation led to mistreatment by his family and serious problems in Iraqi society in general. The applicant appealed against the refusal.
Decision & reasoning:
Outcome:
Appeal granted
Observations/comments:
In this judgement, the court offers a useful interpretation on the guidelines for the credibility assessment of sexual orientation for the immigration services when determining refugee status (Immigratie- en Naturalisatiedienst, Werkinstructie 2015/9). When assessing credibility during a refugee status determination, it is important to consider how the applicant became aware of his sexual orientation, what this meant in practice and how this influenced their expression. But in this assessment, according to the court, the individual circumstances, in particular the psychological condition of the applicant, have to be taken into account. From the mere fact that an applicant cannot elaborate on these private details, it cannot be concluded that his story is not credible.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Netherlands - Aliens Act - Art. 31 |
Other sources:
ABRvS (Afdeling bestuursrechtspraak Raad van State) 15 June 2016, nr. 201509454/1/V2 (ECLI:NL:RVS:2016:1630)
Immigratie- en Naturalisatiedienst, Werkinstructie 2015/9