Poland - Polish Council for Refugees, 23 August 2012, RdU-82/8/S/10
Keywords:
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Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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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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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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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. |
Headnote:
A single woman with two illegitimate children from relationships not approved of by the family (who are Muslim) may be subject to inhuman or degrading treatment in the country of origin by the members of her family.
The particular social group within the meaning of the Convention relating to the Status of Refugees is the group comprising single mothers of illegitimate children living in Muslim families and societies.
Facts:
In 2011, the foreign woman submitted a fourth application for refugee status in Poland. In this application, she stated that she had two minor children born out of wedlock. The first child was conceived when she was still living in the Russian Federation as a result of a casual relationship between her and an Arab man, who abandoned her whilst she was pregnant. The members of the foreignor's family beat her and forced her to marry another man. The woman fled to Poland. The second child was also born from a casual relationship with another foreignor. The father of the second child also abandoned her. The members of the foreignor's family, being radical Muslims, threatened her with death, as a single woman with two illegitimate children.
In March 2012, the Head of the Office for Foreigners dismissed the proceedings in the case as it was found that the application was inadmissible (as it was a subsequent application on the same grounds). The foreignor appealed to the Polish Council for Refugees.
Decision & reasoning:
The Polish Council for Refugees found that the foreignor—as a single mother with two illegitimate children—fulfilled the conditions for additional protection in Poland, as she was subject to inhuman or degrading treatment by members of her family.
The assessment of whether treatment bears the hallmarks of 'inhuman or degrading treatment' depends on the duration of the treatment, the effects on the mental and physical health of the victim, and the victim's gender, age, and general health.
In the foreignor's family, there had been cases of children being given away for adoption immediately after birth in fear of the family's reaction. The Applicant was ostracised by the family, driven from home, and threatened with death by family members whilst she was pregnant as an unmarried woman. She had to go into hiding. What the Applicant's family members might do to her if she returned to her country of origin is so serious that it can be classed as inhuman treatment.
The foreignor was not deemed eligible for refugee status, although she belonged to a 'particular social group' within the meaning of the Convention relating to the Status of Refugees, i.e. a group comprising single mothers of illegitimate children living in Moslem families and societies. This social group is not, however, persecuted by the authorities in the Applicant's country of origin. The state provides such women with limited protection, although it does not respect all of their rights. This is not, however, an intentional act but is attributable to weaknesses in the justice system in this country and to cultural barriers.
This foreignor cannot consider the option of fleeing elsewhere domestically, as she has limited means—she is not employed and instead is bringing up her children. She depends on welfare. In the Russian Federation, this means that she will have to live where she is currently registered, as that is the only place she can access welfare. This would not be possible elsewhere in the Russian Federation, due to lack of registration.
Outcome:
The decision by the first instance authority was overturned in full; refugee status was refused; additional protection was granted.
Observations/comments:
The foreignor was granted additional protection only following a fourth application for refugee status (the proceedings in total lasting more than 3 years), despite the fact that, since the start, she had been basing her applications on circumstances connected with the fact that she had illegitimate children. This indicates that the views expressed in the decisions described in the rulings by the administrative authorities and judgments of the Polish courts have not been consistently applied.