Spain - High National Court Judgment, 27 December 2012, 5349/2012
Keywords:
| Keywords |
|
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. |
|
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." |
|
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. |
|
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. |
|
Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
|
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” |
|
Accommodation centre
Description
Any place used for the collective housing of asylum seekers. |
|
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:
It is an administrative appeal brought before the High National Court against the Deputy Secretary of the Interior’s decision to dismiss the request to review the ruling which denied the claimant’s right to asylum.
The application for asylum was based on grounds of persecution as a result of the Applicant’s sexual orientation as a Cameroonian national.The application was rejected by the Ministry of the Interior as it was deemed that the claimant’s narrative did not portray personal persecution.
The High National Court reviewed the appeal and ruled that the State had not provided sufficient grounds to reject the validity and effectiveness of the documentation submitted by the Applicant.Therefore, the appeal was upheld and the claimant’s refugee status was recognised.
Facts:
The claimant, a Cameroonian national, requested asylum in Spain on November 18th, 2011, after having been forced to leave his country due to persecution on the grounds of his sexual orientation.
The claimant alleged that he had been persecuted by the police and legal authorities, which led to him being convicted and sentenced on November 17th, 2011, to eight years in prison for “openly practicing homosexuality”, a criminal act in Cameroon.In addition to the explicit persecution by the authorities, the claimant was kidnapped and after being threatened and assaulted, he paid a ransom and was freed.
Furthermore, he stated that that were three national search and arrest warrants for him so he decided to leave the country and seek international protection.
As evidence to support his asylum application, the claimant has provided various documents, amongst which are: two police summons from the Cameroonian police force, a search order, and an arrest order arising from the eight year prison sentence, all driven by his openly practiced homosexuality.
The reasoning behind the denial of asylum as well as the rejection of the request for a review was based on the Applicant’s failure to provide proof of personal and individual persecution when alleging actions without sufficient supporting evidence; additionally - in support of the finding of lack of evidence - the documents supplied "are easily manipulated photocopies that are therefore highly questionable".The reasoning hinged upon the State’s assessment of the lack of credibility of the evidence provided.This is the main issue debated in the appeal under discussion, brought before the High National Court.
Decision & reasoning:
In relation to the persecution grounds, the High National Court defered to the case law of the Supreme Court in this matter: Homosexuality is not a reason in itself for granting asylum without proof of persecution by - or tolerated by- the authorities of the country in question.On the other hand, it has been sufficiently proven by extensive country of origin information from various sources that in Cameroon, homosexual people suffer social, political, police and legal persecution.
In terms of the main issue, that is, the probative value of the evidence supplied by the claimant, the High National Court maintained that in the matter of asylum – in contrast to other procedures – prima facie or circumstantial evidence is acceptable.Above all, the Court highlighted the lack of reasoning in the administrative decisions to substantiate the rejection of the evidence supplied.The rulings stated that the documents are "easily manipulated photocopies” but the Court felt that there should be some justification for the instant rejection of this evidence. The Court observed that the State had "sufficient technical means" to check the veracity of the documents.
The High National Court concluded that having met all the requirements for the asylum application to considered, namely, a coherent, plausible and credible narrative, with an allegation of a well-known fact (the persecution of homosexuals in Cameroon), all accompanied by verifiable (at least circumstantially) documents, “a minimum of administrative activity" would have been required to reject the credibility of the arguments on which the persecution is based.This Court deemed the claims to be credible and supported by circumstantial evidence. The documents supplied were not questioned by the State, who failed to substantiate the refusal of the asylum request.
Outcome:
The appeal was upheld and the claimant's refugee status was recognised.
Observations/comments:
It is particularly worth mentioning that in this appeal the High National Court explicitly emphasised the State's negative actions.From the point of view of the independence of the different courts (administrative and legal) as well as the guarantee of access to an effective remedy, this is a positive outcome.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Country of origin reports – Cameroon – from UNHCR, Amnesty International, EU State Department, UN Human Rights Commission.