Hungary - Metropolitan Court of Budapest, ÖH v BevándorlásiésÁllampolgárságiHivatal (Office of Immigration and Nationality, OIN) 20.K.31.162/2012/10
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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Terrorism
Description
Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature and context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act. |
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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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Obligation to give reasons
Description
Obligation on a decision-maker to give reasons for an administrative decision including applications for international protection and decisions taken under the Dublin II Regulation |
Headnote:
The court ordered the Office of Immigration and Nationality to conduct new proceedings. The mere fact that national security risk factors arise vis-à-vis a person is not sufficient reason to exclude them from refugee or subsidiary protection status.
Facts:
The applicant of Turkish origin is the member of an organisation in Turkey that protects the rights of Kurds and other disadvantaged people, whilst he also works as a journalist covering local politics and human rights. In 2003 the applicant was sentenced to twelve and a half years imprisonment on charges of being a member of the Turkish Hezbollah (TH) terrorist organisation. The claimant denied he belonged to the TH, the records only testify to links, and he was not charged with committing any specific act. The claimant was then recognised as a refugee in Hungary, in 2003.
In 2004, however, the applicant renounced his refugee status after hearing his case was being heard once again in Turkey. But there was no new investigation and the court only reduced the sentence. As the applicant would have to go to prison upon returning home, he applied for refugee status once more.
The Office of Immigration and Nationality rejected the application both for refugee and subsidiary protection status. While it acknowledges that the proceedings in Turkey do not meet the requirements of a fair trial, it referred to Article 33 (2) of the Geneva Convention, and to the observation submitted by the Counter Terrorism Centre (CTC) to the effect that there were national security risks concerning the claimant. However, the Office found that the principle of non-refoulement applied in view of the prohibition on torture.
The claimant submitted a request for a review of the decision, stating that the Office had no grounds to refer to Article 33 (2) and that the opinion of the CTC contained no reasoning.
The respondent declared that it was bound by the opinion of the competent authority, and knowledge of the facts and circumstances underlying the reasoning was not absolutely necessary for the decision.
Decision & reasoning:
The court found that the respondent had applied the wrong piece of legislation, as Article 1 F of the Geneva Convention concerns exclusion from refugee status, not Article 33 (2). Since this error could have affected the merits of the decision, the respondent had to conduct new proceedings.
The mere fact that national security risk factors arise vis-à-vis a person is not sufficient reason to exclude them from refugee or subsidiary protection status. Consequently, the CTC must enable the person making the judgment in the new proceedings to inspect the documents prepared on the claimant; the decision must state the exact grounds for exclusion/specific act, but shall not reveal what information led him/her to said conclusion.
Outcome:
The court repealed the decision and ordered the respondent authority to conduct new proceedings.
Observations/comments:
It is not the CTC (national security body) that has to draw the conclusion from the competent authority opinion about whether reasons for exclusion prevail in relation to recognising the applicant’s status, as this requires competence in matters of asylum law. The respondent authority has the jurisdiction and competence for this, and must be given an opportunity to study the documents sent by the CTC, and compare them with the Geneva Convention as well as Hungarian laws.