Hungary - Metropolitan Court of Budapest, KF v BevándorlásiésÁllampolgárságiHivatal (Office of Immigration and Nationality, OIN) 6.K.31.728/2011/14
| Country of Decision: | Hungary |
| Country of applicant: | Afghanistan |
| Court name: | Metropolitan Court of Budapest |
| Date of decision: | 26-04-2012 |
| Citation: | 6.K.31.728/2011/14 |
Keywords:
| Keywords |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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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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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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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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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
Headnote:
The Afghan applicant was granted subsidiary protection status during the court proceedings. The authority must make sure that the applicant is not at risk of serious harm or persecution in the relevant part of the country, not only at the time the application is assessed but also that this is not likely to occur in the future either. Countries struggling with armed conflicts do not normally provide safe internal flight options within the country, as the movement of front lines can put areas at risk that were previously considered safe.
Facts:
The applicant of Afghan origin requested refugee status in 2010, but this was rejected by the Office of Immigration and Nationality (OIN) in view of the large number of inconsistencies in the claimant’s statements, while the OIN found that non-refoulement did not apply. The claimant then moved to Austria, but was returned to Hungary under the Dublin system, where he submitted a new application. However, this was again rejected by the authority given the inconsistent statements, and because the claimant moving abroad cast doubt on his credibility. The authority also cited the judgment of the European Court of Human Rights in the case of Husseini v. Sweden, and found that the claimant would not be subject to serious harm upon returning home. The claimant contested the decision in court, stating that the concept of “serious harm” as per Section 61 c) of the Hungarian Act on Asylum was broader than Article 3 of the European Convention on Human Rights (ECHR) and that the decision was not based on the latest country of origin information.
Decision & reasoning:
The court did not recognise the claimant as a refugee as the claimant’s statements regarding key elements of his escape were neither consistent nor convincing.
However, it was justified in granting the claimant subsidiary protection status since according to the latest country of origin information when the decision was made, the security situation in Afghanistan is extremely volatile, and the claimant cannot be expected to seek refuge in the capital city from the threats brought on by the armed conflict in his province of origin.
Countries struggling with armed conflicts do not normally provide safe internal flight options within the country, as the movement of front lines can put areas at risk that were previously considered safe.
Outcome:
The court granted the applicant subsidiary protection status.
Observations/comments:
The fact the claimant left for Austria in the meantime at most implies a reluctance to cooperate with an authority, and this may not be assessed in relation to credibility.
The court also rejected the respondent’s reference to the ECHR judgments, since in these judgments the ECHR did not make its decisions based on the latest country of origin information.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Husseini v. Sweden, Application No. 10611/09 |
| ECtHR - Chalal v. the United Kingdom, Application No. 1948/04 |
Other sources:
UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, published on 17 December 2010